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Court of Appeal:
Threat to Kill Didn’t Justify Denying Mental Health Diversion
Stratton Says Firing Gun in Air Was Just to Gain Attention; Opinion Contains Puzzling Contradiction
By a MetNews Staff Writer
The Court of Appeal for this district on Friday held that a judge abused her discretion in denying a mental health diversion to a man who fired a gun into the air and uttered a threat to kill his girlfriend.
Presiding Justice Maria E. Stratton of Div. Eight authored the opinion. That opinion is perplexing insofar as it quotes the trial judge, Los Angeles Superior Court Judge Amy N. Carter, as making a finding, then proclaims she did not make that finding.
Under Penal Code §1001.36 (b)(1)(F), mental health diversion may be denied where “[t]he 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.” Sec. 1170.18, in turn, refers to §667(e)(2)(C)(IV) which lists eight categories of serious crimes, including a homicide, dubbed “super strikes.”
In order to deny diversion based on a danger to public safety, the judge must find that the defendant is likely to commit a super strike.
Quotes Carter’s Finding
Stratton wrote:
“The court found that ‘based on the defendant’s willingness to make a threat to kill accompanied by firing a gun into the air, that that conduct demonstrates that he is likely to commit a super strike offense.’ The court concluded that appellant ‘poses an unreasonable risk of danger to public safety as defined in...section 1170.18’ and denied his motion.” Later in the opinion, she said:
“Here, the trial court did not find that appellant is ‘likely to commit a super-strike offense.’ ”
Stratton did not explain the inconsistency.
Prior Crimes
She added:
“Nor is there any evidence in the record to support such a finding. It is undisputed appellant’s prior record, consisting of possession and sales of drugs and theft, does not include violent or sexually violent convictions, let alone a super strike.”
The defendant, Thomas Whitmill, in a frenzy, fired the gun in the air to warn “Dez.,” a friend of his cohabitant, Shannon Carter, not to advance closer to him and told Carter: “Bitch, I will kill you.”
Stratton provided this reasoning:
“[P]erhaps most importantly, appellant shot a single shot up in the air, as if using it more like a bullhorn to warn Dez against approaching any closer. He did not aim the handgun at Dez or Shannon, but rather aimed at the sky. Surely he could have aimed the gun at Dez, who was three and a-half to four feet away, or Shannon, who was 15 feet away, if he intended to inflict injury on a person.
“Nor did he turn around and engage, aim, or fire the gun at Deputy [Sheriff Kevin ] Walker who appeared on site within moments. Instead, he threw the gun away and immediately turned himself in to Deputy Walker with ‘no incident.’ These undisputed facts indicate a likelihood that appellant would not commit a super strike. The court’s speculation that appellant posed an unreasonable risk of danger to public safety is belied by the totality of appellant’s behavior and criminal history.”
The opinion directs that the motion for a mental health diversion be granted.
That relieves Whitmill of the sentence Carter imposed: three years in prison for firing a gun with gross negligence and for two probation violations.
Concurring Opinion
Stratton’s opinion was signed by Justice John Shepard Wiley Jr. San Diego Superior Court Judge Albert T. Harutunian III, sitting on assignment, wrote a concurring opinion, saying:
“I concur with the result, because I believe it is the result the legislature intends courts to reach under these circumstances. The statute clearly limits the discretion of courts to find in any particular case that mental health diversion creates a public safety risk. The legislature does not want courts to deny mental health diversion when there is reason to believe the defendant will commit a violent felony, unless that felony constitutes a ‘super strike.’ Our decision is compelled by the policy decision made by our elected representatives. We are duty-bound to enforce the law as written, whether or not we agree with the public safety risk the law accepts as permissible.”
The case is People v. Whitmill, B318582.
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