If the Court of Appeal is correct about what the statute says -- and it might well be -- then perhaps we've gone too far.
Marco Moine has some problems. Here's what prompted his latest foray into the criminal justice system. (I recite the facts at some length because they're potentially indicative of his risk of reoffending, which is one of the key issues.)
"The People charged Moine with three counts of assault (the assault counts) and two counts of making criminal threats (the criminal threat counts) for two separate incidents occurring in the offices of two different medical care providers.
The first incident involved a fist-fight that took place in the waiting room of an urgent care facility in Palos Verdes on April 20, 2017. On that day, while Moine was in the waiting room, he asked a staff member at the front desk to turn off the television. Another patient confronted Moine about his request, and they entered into a fist fight. They each landed blows upon the other. At trial, they each presented conflicting testimony about who initiated the confrontation and who was more aggressive.
The second incident took place nearly a year later in another medical provider’s waiting room. On March 12, 2018, Moine sought medical care at an urgent care clinic in Loma Linda, hoping to secure a refill of his medications. After Moine saw the physician’s assistant, an office manager escorted Moine from the treatment room and handed him his prescription. Moine became upset that a referral to a psychiatrist had not been approved, and he questioned the office manager about the medication he had been prescribed.
As Moine left the medical office with his mother, the office manager heard him say something “along the lines of, ‘This is America. I can go home and get my gun and come back and shoot all of you.’ ” The officer manager explained that over the course of a five-minute period, Moine made several other statements, which she described as “ranting,” and he was cursing, pacing, and “talking with his hands up in the air” as he spoke.
A nurse who was at the front desk testified that Moine was visibly upset. She did not “remember exactly” the words Moine spoke, but recalled him saying “If I didn’t get—they are lucky— they are lucky I don’t have my gun with me, otherwise I would kill everybody here.” He continued, “I am going to come in and kill everybody here.” On cross examination, she agreed he also used the phrase, “If I had a gun.”"
Those are the latest things. Mr. Moine also has a fair amount of prior criminal history. He's currently being charged with a "misdemeanor charge of resisting an officer in violation of section 148, resulting from his refusal to comply with officers’ commands in responding to a report of a possible overdose. He also faced a misdemeanor charge of petty theft in violation of sections 484 and 490.2, for stealing medical supplies." Plus "the probation officer’s report indicates Moine had four prior misdemeanor convictions, three for drug or alcohol related offenses and one for hit and run."
It's fairly clear that Mr. Moine has a mental health problem. Probably also a drug problem too; perhaps related. The point is: As a result, there's a fair degree of spontaneous violence, over a nontrival period of time.
The trial court seems to understand that, so doesn't sentence Mr. Moine to prison; rather, the "court suspended imposition of sentence and placed Moine on probation for five years." Which seems to me like a reasonable resolution.
Moine appeals, saying that he should have been granted mental health diversion. Under the statute, you get diversion if (essentially) your mental health problems were a significant factor in the commission of your crimes -- which is definitely the case with Mr. Moine -- and your release wouldn't pose an unreasonable risk to public safety. It's that last factor that's principally relevant here. Since he's got a doctor who says his mental condition might respond to treatment, if Mr. Moine isn't a risk to the public, then the charges against him get postponed for a year or two while he gets treated, then if everything goes okay during that period, the charges are dismissed.
So the question is whether releasing Mr. Moine for those couple of years would create an unreasonable risk of safety to the public.
Whatcha think?
He did, after all, say things like "This is America. I can go home and get my gun and come back and shoot all of you" and "I am going to come in and kill everybody here." Plus there's the obvious mental health and violence control issues. I bet that if he was released, and then ended up as a mass shooter, a ton of people would say: "It was so obvious! How could anyone not see it?!"
Of course, maybe Mr. Moine is ATNA (all talk, no action). (I learned this acronym yesterday in a different -- albeit also disturbing -- context.) At least as guns go. After all, he hasn't yet shot anything up. Yet.
Even if that's so, however, he's clearly got impulse control and violence problems. Witness the assault charge and all the threats. There's fairly clearly a real risk that if he's released, he's going to end up punching someone. Or worse.
Is that sufficient under the statute to disqualify him from mental health diversion? Does it mean that releasing him would create an unreasonable risk to public safety?
The Court of Appeal says: "No. Not even close."
Through a convoluted series of cross-references -- including reference to "clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667" -- the Court of Appeal says that you're only an unreasonable risk to public safety under the statute if you're going to engage in so-called "super-strike" offenses. What are those? Things like "murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment." Unless you're going to commit one of those (or some molestation offenses), you're all good. Mental health diversion for you.
Which strikes me as a fairly seriously narrow category of crimes. Let's say, for example, a guy with mental health issues commits a plethora of serious offenses -- e.g., whacking a ton of people with a baseball bat -- and we're convinced that if he's released, he's going to do the same thing again, this time to a bunch of little kids. He says: "You gotta release me anyway. Yes, I'm a clear danger to society if released, but since I'm not shooting a police officer with a machine gun or anything like that, tough for you, since what I'm likely to do isn't a death penalty or life sentence offense and hence you're required to take that risk. No discretion." Is he right?
Apparently so. Sure, you can potentially try to fudge at the margins, and say "Well, you gotta be able to find a doctor who says you'll respond to treatment," but realistically, how hard is that? The Court of Appeal says its an abuse of discretion to find dangerousness short of these incredibly serious crimes. I get it. It looks like the statute might well say that.
But, if so, wow. That perhaps seems to take mental health diversion perhaps a bit too far. At least if we say that categorically no other types of societal dangerousness can be sufficient. Which is definitely what the Court of Appeal holds here. Holding, on that basis, that releasing Mr. Moine doesn't constitute an unreasonable risk to public safety. At least as the statute currently defines it.
The Court of Appeal says something else related to this issue that is both worth mentioning as well as simultaneously (1) seemingly true, but (2) might have unanticipated consequences. About halfway through the opinion, the Court of Appeal says: "Our conclusion is further supported by the trial court’s decision to release Moine into the community on bond for a period of over two years, which indicates the court necessarily found that Moine was not likely to cause “great bodily harm to others” if released. (Cal. Const., art. I. § 12, subds. (b) & (c).) It is logically inconsistent to deny mental health diversion on the ground that Moine was likely to commit a super-strike offense, while simultaneously finding he was not likely to inflict great bodily injury on persons in the community."
That's a pretty good point. It's hard to argue that releasing someone would create an unreasonable risk to the public when, earlier in the case, you previously decided to let him out. If it was okay to release him before trial, why isn't it similarly okay to release him so he can get treated?
I think there's at least a possible answer to this question, depending on the case, because pretrial release on bail happens before someone's found guilty, whereas sometimes mental health diversion is requested after conviction but before sentencing. It wouldn't necessarily be absurd to say "Well, at this point, we presume that you're innocent, so I'm going to grant you bail," yet later say "Now that the jury has found that you did in fact commit the assault at issue, and the presumption no longer exists, the offense that you committed establishes that you'd probably be a danger if released."
But if everyone relevant -- both bail and mental health diversion -- are requested pretrial, then, yeah, the Court of Appeal has a pretty good point.
The only downside of this is how trial courts might perhaps respond to this reality. If you say that you can't find future dangerousness and hence stop a guy from (eventually) getting the charges against him dismissed via mental health diversion if you've previously granted him bail, then I could readily see trial courts exercising their discretion . . . to not grant bail. Maybe they're fine to let the guy bail out but are super unwilling (as here) to let the charges be entirely dismissed. I could easily see a trial court saying (subconsciously or sub rosa) "Maybe in the old days I'd grant this guy bail, but no way am I doing so since the Court of Appeal has now said that when I do so I can't find the guy too dangerous for mental health diversion and dismissal. Rot in jail, my friend."
Sometimes trying to do something good might practically have the opposite effect given unintended consequences. Maybe including here.
