Unreasonable risk to public safety

Mental Disorder Diversion and Prop 47

People v. Pacheco (2022) 75 Cal.App.5th 207

The trial court did not exceed the bounds of reason in finding that appellant had failed to satisfy the sixth criterion for pretrial mental health diversion – if treated in the community, he would not pose an unreasonable risk to public safety within the meaning of section 1170.18. Dr. Wood opined that, “as long as [appellant] takes his psychiatric medication on a consistent basis, and stays *214 abstinent from using methamphetamine, he would not likely pose an unreasonable risk of danger to public safety if treated in the community.” (Italics added.)

“[T]he use of methamphetamine would likely exacerbate his psychotic symptoms.” The record supports a reasonable belief that appellant will not refrain from using methamphetamine if he is treated in the community without conviction and supervised probation. Mental health diversion may provide some motivation for remaining drug-free and compliant with treatment for mental illness. In theory, felony probation with state prison “hanging over his head,” will provide even more motivation. Appellant told Dr. Wood that he “would comply with taking medication prescribed by a psychiatrist, attend a treatment program and would stop using any methamphetamine.” But before committing the arson offense, appellant had used “methamphetamine on a daily basis since the age of 16,” i.e., for the previous 14 years. His prior arrests for being under the influence of methamphetamine had not deterred him from continuing his abuse of the drug. Because of his 14-year history of chronic methamphetamine abuse, his resolve to stop using the drug is dubious.

Dr. Wood opinion that if appellant “returns to using methamphetamine, then he would become unstable and psychotic and be likely to reoffend in some bizarre manner.” The voices that allegedly told him to start the brush fire could return and direct him to start another similar fire. Or, based on his statement to a probation officer that he had lit “a fire so he could smoke methamphetamine,” appellant could start another fire for the same purpose. In view of the extreme drought conditions in Ventura County at the time of the trial court's denial of diversion, a similar fire could have had a devastating effect. (See ante, pp. 6-7, fn. 2.) The fire could have spread and caused the death of persons living in the area or fire department personnel fighting the fire. According to the probation report, appellant started the brush fire “near a highly populated homeless encampment.”

Thus, the trial court acted within its discretion in declining to conclude that appellant “will not pose an unreasonable risk of danger” of committing a “super strike” – arson murder – if treated in the community pursuant to pretrial mental health diversion. (§ 1001.36, subd. (b)(1)(F).)