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Court of Appeal:
Trial Evidence May Be Weighed in Mental Health Diversion
Opinion Says Facts of Underlying Crime Properly Evaluated Post-Conviction Given Retroactive Application of Law
By a MetNews Staff Writer
The Third District Court of Appeal held yesterday that a judge may consider the facts of the underlying crime, as established by trial transcripts, in evaluating a criminal defendant’s post-conviction request for diversion under a 2018 law providing for alternatives to criminal sanctions for persons with mental health disorders.
The result—rendering admissible trial evidence in a hearing for pre-trial diversion—comes into play due to case law finding that the statute applies retroactively.
Acting Presiding Justice Peter A. Krause authored the opinion affirming the judgment of Sacramento Superior Court Judge Raoul M. Thorbourne. Justice Stacy Boulware Eurie and El Dorado Superior Court Judge Vicki Ashworth, sitting by assignment, joined in the opinion.
Kidnapping Case
Appealing the denial was defendant Crystal Graham, who had been found guilty by jury in March 2018 of kidnapping to commit robbery, kidnapping during the commission of a carjacking, second degree robbery and simple kidnapping.
The charges stemmed from an Aug. 28, 2016 incident in which Graham lured a man, identified as E.C., to a motel room where Graham’s codefendant, Joe Navarro, was waiting. Navarro held a box cutter to E.C.’s throat before taking his wallet and keys, which were then given to Graham who drove to an ATM and withdrew $400.
After the money was taken, E.C. was placed in the back of his Prius and driven away from the motel by Graham. The victim succeeded in freeing himself from the tape binding his hands and jumping out of the vehicle onto the freeway, waving down passersby for help.
Graham was sentenced to two consecutive life terms on the charges of kidnapping to commit a robbery and kidnapping during the commission of a carjacking. The sentences for the remaining counts were stayed.
In 2021, the simple kidnapping conviction was overturned on appeal. The Third District, in an unpublished opinion by then-Presiding Justice Vance W. Raye (since retired), also remanded the case for a mental health diversion eligibility hearing pursuant to Penal Code §1001.36, enacted June 2018 and found to be retroactive by the California Supreme Court in the 2020 decision in People v. Frahs.
Penal Code §1001.36
Sec. 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met: a defendant must have been diagnosed with a mental disorder within the last five years by a qualified expert in mental health and the mental disorder must have been a “significant factor” in the commission of the charged offense.
The section creates a presumption in favor of finding that the disorder was a significant factor. It provides:
“If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.”
If threshold eligibility is satisfied, the court must consider the defendant’s suitability for diversion.
Sec. 1001.36(c) provides that a defendant is suitable for pretrial diversion if, based on the opinion of a qualified mental health expert, the defendant’s mental health disorder is treatable, the defendant consents to diversion and treatment, and the defendant will not pose an unreasonable risk of committing a delineated violent super-strike offense.
Eligibility Hearing
At the eligibility hearing, Graham’s expert, clinical and forensic psychologist Bruce W. Ebert testified that Graham’s mental diagnoses and history of substance abuse led to defects in her brain that impaired her ability to fully understand the consequences of her actions. Ebert said that there was “no question in [his] mind” that there was a causal connection between Graham’s mental health struggles and her criminal behavior.
Thorbourne was unpersuaded and found Graham ineligible for diversion, concluding that Ebert’s description of the connection between the diagnosis and criminal behavior was “rather scant” and “not detailed.” Finding that clear and convincing evidence overcame the presumption, he looked to the trial transcript detailing the crimes and said there was “no nexus” between her diagnoses and criminal behavior.
The judge also found Graham unsuitable. Thorbourne reasoned that the procedural posture of the case request made it knowable that Graham was likely to commit a super-strike offense as she did in fact commit two such crimes, the underlying convictions.
Trial Transcripts
Krause noted the failure of §1001.36 to carve out an exception for evidence presented at trial, which he said “makes sense given that the statute typically applies before a trial.” However, he pointed out:
“Notably, section 1001.36 expressly permits the trial court to consider preliminary hearing transcripts and witness statements. Thus, even in a pretrial context, there is nothing preventing the court from hearing evidence of what the People anticipate presenting at trial. Hence, consistent with the plain language of the statute, we conclude that section 1001.36, subdivision (b)(2) authorizes the trial court to consider any relevant and credible evidence regardless of the format or timing of its presentation.”
Rejecting Graham’s reliance on two cases with language noting that a case on remand for retroactive application of the section must be returned to its procedural posture before the jury verdict, he explained that neither case “suggested that a trial court must ignore relevant evidence simply because it was introduced at trial.”
Paradoxical Position
He also pointed to a “paradox inherent” in Graham’s position, saying:
“While arguing that this case must be returned to its pretrial status, effectively erasing any evidence of what occurred or was presented thereafter, defendant simultaneously urges us to consider evidence of her progress and behavior while in prison….However, if we were to conclude that the case must be returned to its pretrial posture, and that any trial and posttrial evidence must be excluded from the diversion analysis, it stands to reason that evidence of defendant’s post-conviction actions or behavior also would be subject to exclusion.”
Krause continued:
“But, like trial evidence, evidence relating to a defendant’s behavior in prison may be relevant and useful to a court’s diversion assessment, and excluding such evidence could unduly limit the court’s analysis. Thus, the rule that defendant proposes brings into focus the difficulty inherent in drawing lines of admissibility if we prohibit relevant evidence simply because of the posture of the case on remand.”
The jurist declared that there was “no error or abuse in discretion” in the consideration of the facts from the trial transcript.
Suitability of Diversion
Turning to her suitability, Krause said “substantial evidence supports the trial court’s finding that defendant would pose an unreasonable risk to public safety if granted diversion and treated in the community.”
He reasoned:
“It…appears that the trial court based its determination on the serious and violent nature of defendant’s charged crimes and defendant’s actions during the commission of those crimes. Section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness, and it expressly includes ‘the defendant’s violence and criminal history’ and ‘the current charged offense’ among the permissible factors….[T]he court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike.”
The case is People v. Graham, 2024 S.O.S. 1844.
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