Sarmiento v. Super. Ct. of San Diego Cnty.

317 Cal.Rptr.3d 112

Jeanette SARMIENTO, Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

The People, Real Party in Interest.

D082443

Court of Appeal, Fourth District, Division 1.

Filed January 9, 2024

PETITION for writ of mandate from an order of the Superior Court of San Diego County, Dwayne, K. Moring, Judge. Petition granted. (San Diego County Super. Ct. No. SCD297592)

Katherine Braner, Chief Deputy Public Defender and Emily Rose-Weber, Deputy Public Defender for Petitioner.

Summer Stephan, District Attorney, Linh Lam, Chief Deputy District Attorney, Valerie Ryan and Sara Staninger, Deputy District Attorneys, for Real Party in Interest.

No appearance by Respondent.

DATO, J.

In this case, defendant Jeanette Sarmiento requested mental health diversion (Pen. Code, § 1001.36 ¹) after she was charged with attempted robbery arising from an incident in which she handed a liquor store clerk a note written in lipstick on a napkin saying, "Let me get the money." The store employees did not give her any money. Instead, they called 911. According to one of the employees, "[I]t looked like she wanted us to call the police."

An unrebutted psychiatric evaluation submitted in support of Sarmiento’s request for diversion diagnosed her as suffering from posttraumatic stress disorder (PTSD), major depressive disorder, and stimulant use disorder specific to methamphetamine. The PTSD likely resulted from years of sexual trauma she suffered as a child and adolescent. The parties agree that Sarmiento never received treatment for her foundational mental health diagnoses of PTSD and depression, and her substance abuse largely served as a form of self-medication for those underlying conditions. Although she successfully completed two substance abuse treatment programs—one in 2018 resulted in years of sobriety—the failure to address the foundational mental health issues ultimately led to relapse and a resumption of criminal behavior.

Although it found that Sarmiento met many of the requirements for diversion, the trial court denied her request based on two principal concerns. First and primarily, it found that "her inability to remain drug-free after prior participation in [substance abuse] treatment" indicated "she would not respond well to mental health treatment," which accordingly would not "meet [her] specialized mental health treatment needs." Second, although the court did not find that Sarmiento was likely to commit a super strike offense as required by the statute’s definition of dangerousness, it nonetheless concluded that Sarmiento "pose[d] an unreasonable risk of danger to the public," and this was an additional factor in the court’s decision to deny diversion.

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. Accordingly, we issue the writ and direct the court to grant the request for mental health diversion.

FACTUAL AND PROCEDURAL BACKGROUND

A. Mental Health History

Sarmiento was raised by her mother and stepfather. Between the ages of five and eight, along with a group of other children, she was sexually abused by her 30-year-old stepbrother on a repeated basis. Sarmiento did not report the abuse to anyone until she was an adult.

Sarmiento’s stepfather, who she was close to, died of a heart attack when she was 13. She was hospitalized and saw a psychologist after she threatened to commit suicide by jumping off a bridge. At about the same time, she began using methamphetamine, later selling it with her brother Oscar. A few years later, while still in high school, she was gang raped at a party.

In 2013, after being arrested for selling drugs, Sarmiento completed a 120-day residential substance abuse treatment program. She maintained her sobriety for nearly six years, but relapsed in 2019 as a result of an unhealthy romantic relationship with a meth addict who used in her presence and encouraged her to join him. This led to four hospitalizations in that year and two robbery convictions in 2020. While incarcerated she completed additional courses on substance abuse, but received no treatment for her primary mental health diagnoses. She appeared to relapse again shortly before the attempted robbery charge in this case.

Sarmiento’s parole agent supervised her before her latest arrest, and was surprised that it occurred. She characterized Sarmiento as a " ‘model parolee’ " who followed the rules and maintained contact as required. She noted, however, that "drug use exacerbates [Sarmiento’s] mental health issues."

Following her arrest, Sarmiento was the subject of a psychological evaluation by Dr. Cynthia Boyd. Boyd’s diagnosis confirmed that Sarmiento suffered from two mental disorders—major depressive disorder and PTSD. Boyd noted that while these were consistent with prior diagnoses, in the past "the underlaying cause of her mental illness was not explored." She concluded that Sarmiento would require, among other types of intervention, "trauma-focused psychotherapy for symptoms of untreated, chronic PTSD." In Boyd’s opinion, Sarmiento could be safely treated in the community and the "symptoms of [her] mental disorder motivating the criminal behavior would respond to mental health treatment."

B. Request for Mental Health Diversion

In advance of the preliminary hearing, Sarmiento filed a request for mental health diversion under section 1001.36. In support, she attached Dr. Boyd’s evaluation and medical records, as well as the statements of various witnesses including family members, her employer, and her parole agent. Boyd offered specific opinions with supporting reasons that (1) the symptoms of Sarmiento’s mental disorders motivating her criminal behavior would respond to treatment, and (2) she would not pose an unreasonable risk to public safety if treated in the community. Sarmiento also included a report indicating she had been approved for a County-funded residential substance abuse treatment program. She proposed linking substance abuse treatment in a residential setting with County-funded outpatient mental health treatment that would provide case management, medication management, and individual therapy. The People opposed with argument but no additional evidence.

At the healing on the motion in May 2023, Sarmiento’s counsel emphasized the necessity and importance of providing mental health treatment, specifically therapy and psychiatric medication, for her two primary diagnoses—PTSD and major depressive disorder. He noted that her, past attempts at substance abuse treatment had achieved significant success, but the focus on substance abuse was "the only thing that she has done." "The part that has been missing," he said, "is seeing a psychotherapist and taking medication" to address her mental health issues. Counsel also provided additional specifics regarding the treatment plan, explaining that the residential substance abuse treatment program would be for a minimum of three months and that the outpatient mental health services would include psychiatric medication.²

In response, the People questioned Sarmiento’s eligibility for diversion, taking issue with the court’s tentative conclusion that her mental disorders played a significant role in the commission of the charged crime. (See § 1001.36, subd. (b)(2).) As to her suitability for the program, the People expressly conceded that Sarmiento met two of the four requirements: (1) she had presented the opinion of a qualified mental health expert (Dr. Boyd) indicating that the symptoms of her mental health disorders would respond to treatment, and (2) she had agreed to waive her speedy trial rights., (See id., subd. (c)(1) & (2).) Instead, they argued that notwithstanding Dr. Boyd’s evaluation, Sarmiento had failed to establish her symptoms would respond to treatment.³ They also contended the mental health treatment plan proposed for Sarmiento was insufficiently specific to demonstrate that it would meet her specialized needs. (See § 1001.36, subd. (f)(1)(A)(i).) Lastly, they maintained she would pose an unreasonable risk to public safety if treated in the community. (See id., subd. (c)(4).)

Ruling from the bench, the court denied the request for diversion. Referring to the statutory criteria, it began by expressly finding that Sarmiento met both of the eligibility standards. She "suffers from a qualifying mental disorder" and "her mental disorders were significant factors in the commission of the offense." As for suitability, the judge accepted that she had consented to diversion and agreed to comply with her treatment plan.

But the court nonetheless found Sarmiento was not suitable for diversion due to several factors. First, it concluded that Sarmiento’s "inability to remain drug-free after prior participation in treatment" indicated "she would not respond well to mental health treatment." The judge believed her past failures in drug treatment predicted more of the same if diversion were authorized. In the judge’s view, "past performance is the best indicator of future performance and success."

On a related point, the court expressed doubt that the proposed treatment program "will meet the specialized treatment needs of the defendant." Its reasoning sounded a familiar refrain: "If she didn’t have the prior history of committing this conduct, I think we’d be in a different boat. Having previously received treatment for the substance abuse, and having been punished criminally for these offenses and then to continue with this conduct, I don’t see the mental...