People v. Watts

Citation79 Cal.App.5th 830,295 Cal.Rptr.3d 189
Decision Date14 June 2022
Docket NumberB312913
Parties The PEOPLE, Plaintiff and Respondent, v. Demoryie WATTS, Defendant and Appellant.
CourtCalifornia Court of Appeals

79 Cal.App.5th 830
295 Cal.Rptr.3d 189

The PEOPLE, Plaintiff and Respondent,
Demoryie WATTS, Defendant and Appellant.


Court of Appeal, Second District, Division 8, California.

Filed June 14, 2022

Laura R. Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.


79 Cal.App.5th 832

This case involves a denial of mental health diversion under Penal Code section 1001.36.1 Appellant Demoryie Watts was charged with attempted carjacking. He requested, and was denied, mental health diversion several times. After the last hearing and denial, appellant pleaded guilty and was sentenced to 18 months in state prison. On appeal, appellant contends that the trial court erred by requiring the consent of the prosecution before granting diversion. Appellant also contends that his due process rights were violated when the trial court refused to allow live testimony in the last diversion hearing by a psychiatrist that had examined appellant.

We agree with appellant that it was error for the trial court to conclude that diversion required consent by the People. But this error was

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harmless, because the court independently found that appellant did not meet the criteria for diversion. And, the court acted within its discretion in considering the expert's report, but not live testimony, in the pre-trial diversion hearing. Accordingly, we affirm the judgment.


The details of the underlying offense are not relevant to the issues on appeal. In summary, based on the preliminary hearing,

295 Cal.Rptr.3d 191

appellant was with some other men, he approached the driver's side of a vehicle, struck the driver in a failed attempt to steal the vehicle, then ran away. He was charged with a single count of attempted carjacking, a violation of sections 664 and 215, subdivision (a).

Appellant made three initial requests for his case to be transferred (i.e., diverted) to mental health court under section 1001.36 : on February 19, 2020, September 30, 2020, and February 11, 2021. All three were rejected. In denying the third request for diversion without prejudice, the trial court noted that appellant had repeatedly failed to show up for therapy appointments and therefore was not a suitable candidate for mental health treatment. On March 10, 2021, the court was informed that appellant had agreed to participate in a full-service partnership program for mental health services. The court agreed to appoint Dr. Nicole Vienna to evaluate appellant for possible diversion.

On May 6, 2021, appellant filed a written petition for diversion pursuant to section 1001.36. In this fourth request, appellant argued that he qualified for diversion because he met the requirements of section 1001.36, specifically: (1) appellant had been recently diagnosed by a mental health professional, Dr. Vienna, who opined that appellant was suffering from "Intellectual Disability, Mild, and Unspecified Psychosis, which are DSM-listed disorders"; (2) Dr. Vienna opined that appellant's disorder played a significant role in the offense; (3) appellant had agreed to participate in a treatment plan and waive his right to a speedy trial; and (4) appellant did not pose an unreasonable risk of committing a crime listed under section 1170.18. The petition included a copy of Dr. Vienna's report reflecting her opinion that appellant was a suitable candidate for diversion.

On May 10, 2021, the People filed a written opposition to appellant's petition. The People argued that appellant had failed to show that his disorder played a significant role in the offense. Specifically, Dr. Vienna opined that the charged offense was related to appellant's intellectual ability because it is difficult for appellant to say "no" or otherwise recognize when he is being manipulated. The People pointed out that Dr. Vienna reached her conclusions without reviewing the police report, probation report, preliminary hearing

79 Cal.App.5th 834

transcript, or any other source of information regarding the offense. Instead, Dr. Vienna relied on appellant's description of the offense, in which appellant denied responsibility for hitting the driver, and blamed it on the other males that were present. The People argued that Dr. Vienna's conclusion was flawed because she did not appear to recognize that appellant had "manipulate[d] the facts to avoid incriminating himself, [which] demonstrates a level of sophistication and comprehension that contradict[s] the doctor's assessment." The prosecution argued that the flaws in Dr. Vienna's report should cause the court to reject her conclusion that appellant would respond to treatment.

The People also argued that appellant's history of failing to appear at mental health treatments indicated that he was not amenable to treatment. Specifically, while out of custody in his pending case, appellant failed to appear at an initial medical evaluation and two therapy appointments. Given these problems with appellant's prima facie case, the prosecution asked that the court deny appellant's motion for diversion.

The court held a hearing on appellant's petition for diversion on May 12, 2021. The court denied the request, citing both the prosecution's opposition to diversion as well as appellant's history of noncompliance with mental health treatment. The trial court clearly expressed its view that

295 Cal.Rptr.3d 192

diversion was intended to be collaborative, and therefore the consent of the People was required. Appellant argued the statute contained no requirement of prosecutorial consent to diversion. The court went to some lengths to explain that the lack of consent was not the only reason for denying diversion. The court felt Dr. Vienna's assessment was "rather one-sided based upon her conversations with [appellant]." It found that appellant's diagnosis was not a "significant factor" in the commission of the offense. It cited to his history of failing to attend mental health appointments. It indicated that appellant's mental health case plan was insufficient. The court concluded that for the "reasons" (plural) that it had discussed, it was denying diversion.


I. Standard of Review

The court's decision on a motion for diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence. (See People v. Frahs (2020) 9 Cal.5th 618, 626, 264 Cal.Rptr.3d 292, 466 P.3d 844 [noting that § 1001.36 gives trial courts the discretion to grant pretrial diversion]; People v. Moine (2021) 62 Cal.App.5th 440, 447–449, 276 Cal.Rptr.3d 668 [ § 1001.36 affords the trial court discretion to grant or deny diversion if the defendant meets the statutory eligibility requirements]; People v. O'Neal (2021) 64 Cal.App.5th 581, 588, 279 Cal.Rptr.3d 142.) A

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trial court "has broad discretion to determine whether a given defendant is a good candidate for mental health diversion." ( People v. Curry (2021) 62 Cal.App.5th 314, 324, 276 Cal.Rptr.3d 406.)

II. The Trial Court Erred in Finding That Prosecution Consent to Diversion Was Required

Section 1001.36 states that a trial court may grant pretrial diversion if the following six prerequisites are met. First, the court must be "satisfied that the...

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