People v. Burns CA4/1 ( 2023 )

Filed 6/6/23 P. v. Burns CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080239
Plaintiff and Respondent,
v. (Super. Ct. No. SCD273861)
DERRICK LYLE BURNS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Steven E. Stone, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier, Kathryn Kirschbaum and Nora S. Weyl, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Derrick Lyle Burns appeals the denial of his petition for
mental health diversion pursuant to Penal Code section 1001.36.1 The trial
court concluded that Burns failed to make a prima facie showing he could
safely be treated in the community without posing an unreasonable risk to
public safety. (§ 1001.36, subds. (c)(4), (e).) Given his extensive criminal
history, and in particular the circumstances of the current crimes, we cannot
say this was an irrational conclusion. Accordingly, we affirm the trial court’s
order.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, Burns repeatedly struck his girlfriend, prompting
bystanders to call 911. When officers responded to the scene, Burns led them
on a high-speed vehicular chase. Toward the end of the chase, both he and
his girlfriend jumped from the moving vehicle shortly before it collided
unmanned with an oncoming car. Burns was eventually apprehended on foot
and charged with various crimes. A jury convicted him of false imprisonment
(§ 236), evading a police vehicle (Veh. Code, § 2800.2, subd. (a)), corporal
injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and two counts of
assault with a deadly weapon (§ 245, subd. (a)(1)). Burns admitted two prior
strike convictions. The trial court struck one of them at sentencing and
imposed a prison term of 19 years, eight months. (See People v. Burns (2019)
38 Cal.App.5th 776, 780 (Burns I).)
In the prior appeal, Burns argued the case should be remanded for
mental health diversion proceedings under newly enacted section 1001.36.
(Burns I, supra, 38 Cal.App.5th at p. 785.) We agreed with him that the new
statute applied retroactively to nonfinal judgments on direct appeal. (Id. at
1 Further undesignated statutory references are to the Penal Code.
2
p. 786; see People v. Frahs (2020) 9 Cal.5th 618, 631−632 (Frahs).) We read
the record to include evidence that could bear on each of the six eligibility
criteria. (Burns I, at pp. 788−789.) Attached to Burns’s sentencing brief was
a postconviction psychological evaluation by Dr. Cynthia Boyd, in which she
diagnosed Burns with PTSD from a 2016 gunshot wound and concluded he
had experienced a “fear driven limbic system response” outside his “volitional
control” when confronted by police. (Id. at p. 788.) His PTSD symptoms
lingered because he did not seek psychiatric treatment. Based on this
evidence, we could not conclude that remand would be futile and
conditionally reversed for an eligibility hearing. (Burns I, at p. 790; see
Frahs, at p. 640.) We “express[ed] no view as to whether Burns [would] be
able to show eligibility on remand or whether the trial court should exercise
its discretion to grant diversion if it [found] him eligible.” (Burns I, at p. 790.)
On remand, Burns filed a petition for diversion, attaching Dr. Boyd’s
2018 evaluation. He also attached a 2021 evaluation by Dr. Robert Kelin.
After meeting with Burns, Kelin concluded he was “experiencing some type of
psychopathology” and hearing voices. Kelin opined that Burns struggled to
manage his internal stimuli, which led him to behave erratically. He also
seemed depressed, but that could stem from being incarcerated. Kelin
diagnosed Burns with schizophreniform disorder, conduct disorder, and
amphetamine use and could not rule out posttraumatic stress. Burns’s
primary psychopathology included “auditory and visual hallucinations as well
as delusions of being contacted by his ancestors,” which led him to be
“overwhelmed by problems” and turn to drugs or act out. Kelin believed
Burns needed more intensive mental health treatment, including structured
therapy. He also thought Burns would benefit from drug treatment, as
Burns continued to use alcohol, marijuana, and methamphetamine in prison.
3
The People opposed Burns’s petition. They questioned whether he
sufficiently established a qualifying mental disorder or a link between the
crimes and his mental health. Moreover, they claimed Burns posed an
unreasonable risk of danger to public safety if treated in the community
based on his violent criminal history and current offenses, which were
committed while on active parole. To the extent Burns was deemed
statutorily eligible for diversion, the People urged the court to exercise its
discretion to deny the request.
The matter was heard at a March 2022 video hearing, where the trial
court summarily denied Burns’s petition on the papers, rejecting the defense
request to present live testimony. The court did not deem this a close case,
finding no prima facie showing as to any of the six threshold eligibility
criteria under section 1001.36. Because only three of the criteria are
contested on appeal, we highlight those.2
As to the first eligibility factor under section 1001.36, the court
determined that Burns failed to make a prima facie showing he suffered from
a qualifying mental disorder. (§ 1001.36, subd. (b)(1).) The two reports he
submitted gave conflicting diagnoses. Dr. Boyd diagnosed Burns with PTSD
and ruled out delusional and paranoid thinking. In the court’s view, that
finding was not surprising, where Burns told Dr. Kelin that his
hallucinations were attributable to methamphetamine-induced psychosis
2 Both Burns and his counsel addressed the court at the hearing. At
various points, Burns appeared confused as to what a prima facie showing
entailed. He read the opinion in Burns I, which he mistakenly referred to as
a Supreme Court ruling, as having decided that he met all six eligibility
criteria for mental health diversion. To the contrary, Burns I left it to the
trial court to determine whether Burns established a prima facie showing of
eligibility, and if he did, whether to exercise its discretion to grant diversion.
(Burns I, supra, 38 Cal.App.5th at p. 790.)
4
while in prison. Noting that both psychologists had relied primarily on
Burns’s own statements in reaching their conclusions, the court discounted
both reports, noting Burns had been shown to lie. When Burns interjected
that he never lied to Boyd, the court muted his microphone and commented
that his outburst was not reflective of “somebody who has mental health
issues,” but rather “someone who’s unhappy about the court’s ruling.” The
court also reasoned that even accepting Boyd’s account, PTSD could not
explain his violent assault on his girlfriend before police arrived and drew
weapons.
Moving on, the court determined that Burns failed to link any mental
disorder to the commission of the crimes. (§ 1001.36, subd. (b)(2).) In its
view, the trial evidence proved that Burns fled from police because he was on
parole, had just beaten his girlfriend in public, and knew the consequences of
a new felony case. He was on cocaine and Xanax at the time of the offense
and went to great lengths to get away, nearly causing multiple deaths.
Again, Burns’s violent acts began before police arrived. While Dr. Boyd
linked Burns’s PTSD to his flight on seeing police draw a gun, that did not
explain his earlier criminal conduct.
Beyond any other factor,3 the court zeroed in on whether Burns proved
a prima facie case that he could safely be treated in the community. On this,
the court readily found that diversion would pose an unreasonable risk of
danger to public safety, as defined in section 1170.18. (§ 1001.36, subd.
(c)(4).) Burns’s criminal history was “extensive and violent,” and he was on
3 The court briefly addressed whether Burns had made a prima facie
showing that his symptoms would respond to treatment or that he consented
to treatment, finding he failed to show either criteria. It also faulted Burns
for not providing a specific treatment plan. These findings are not defended
by the People on appeal.
5
active parole for his two prior strike convictions at the time of the offenses.
By jumping out of a moving car, he “endangered the lives of countless
citizens” as the car “continued down the street like an unmanned missile.”
Earlier in the day, he violently assaulted his then-girlfriend after she
announced being pregnant. Burns’s poor conduct persisted in prison with
Burns using methamphetamine, drinking alcohol, and taking morphine pills.
“If this is his conduct in prison,” the court wondered aloud, “imagine if he
were in the community.” It harbored “no doubt” Burns would commit a super
strike offense if treated in the community. “In fact,” the court continued,
“looking at the Defendant’s conduct in prison since the sentencing, . . . had I
known about that conduct and the Defendant’s complete lack of any attempts
at rehabilitation, this Court would have sentenced him to 25 to life as
requested by the People to ensure that the public is safe.” The court believed
that Burns should serve his entire 19 year, eight month sentence, stating
“[a]nything shorter will present a grave danger to the public.”
In short, the court agreed with the People that “this case does not fall
within the spirit of the pretrial mental health diversion statutes.” Finding
Burns failed to meet his burden to show that diversion was warranted in this
case, the court denied his petition.
DISCUSSION
Burns contends he made a prima facie showing as to each of the six
eligibility factors under section 1001.36; he believes the trial court found
otherwise by making improper credibility determinations. He further
contests the trial court’s decision to rule on the papers without permitting
live testimony by Dr. Boyd. We reject both claims. The court was not
required to receive live testimony in evaluating whether Burns made a prima
facie case. And it reasonably found on the papers that he failed to show he
6
could safely be treated in the community as required by section 1001.36,
subdivision (c)(4).
A. Overview of Mental Health Diversion Under Section 1001.36
The Legislature enacted section 1001.36 in 2018 to provide pretrial
mental health diversion for defendants suffering from mental disorders that
were a significant factor in the charged offense. (Stats. 2018, ch. 34, § 24
(Assem. Bill No. 1810).) “The primary purposes of the legislation are to keep
people with mental disorders from entering and reentering the criminal
justice system while protecting public safety, to give counties discretion in
developing and implementing diversion across a continuum of care settings,
and to provide mental health rehabilitative services.” (People v. Qualkinbush
(2022) 79 Cal.App.5th 879, 886, citing § 1005.35.)
Where a defendant seeks diversion, a trial court may at any time
evaluate whether he or she can make a prima facie showing of eligibility and
suitability for it. (§ 1001.36, subd. (e).) “The hearing on the prima facie
showing shall be informal and may proceed on offers of proof, reliable
hearsay, and argument of counsel. If a prima facie showing is not made, the
court may summarily deny the request for diversion . . . .” (Ibid.)4
“If the defendant makes a prima facie showing that he or she meets all
of the threshold eligibility requirements and the defendant and the offense
4 Based on this plain statutory language, we readily dispose of Burns’s
second contention on appeal. Because the trial court was not required to hold
an evidentiary hearing in evaluating a prima facie case (People v. Bunas
(2022) 79 Cal.App.5th 840, 863−865 (Bunas)), it did not err in rejecting the
defense request to allow Dr. Boyd to testify. Even otherwise, there could be
no prejudice from that evidentiary decision where counsel admitted Boyd
would not provide “any further elaboration or any additional information that
was not contained in her report.”
7
are suitable for diversion, and the trial court is satisfied that the
recommended program of mental health treatment will meet the specialized
mental health treatment needs of the defendant, then the court may grant
pretrial diversion.” (Frahs, supra, 9 Cal.5th at p. 627.) A grant of pretrial
diversion is discretionary and not mandatory, even where a defendant meets
all of the threshold requirements. (People v. Gerson (2022) 80 Cal.App.5th
1067, 1080 (Gerson).)
Where granted, diversion consists of the defendant receiving treatment
in a community mental health program for up to two years. (Frahs, supra,
9 Cal.5th at p. 627; § 1001.36, subd. (f)(1)(C).) The court may reinstate
criminal proceedings if the defendant is charged with another crime or
otherwise performs unsatisfactorily during diversion. (§ 1001.36, subd. (g).)
But if the defendant performs satisfactorily, the court will dismiss criminal
charges at the end of the diversionary period. (Id., subd. (h).)
Section 1001.36 has been amended several times in its short history.
At the time we decided Burns I and when the trial court held proceedings on
remand, a defendant had to show six eligibility criteria to establish a basis
for pretrial diversion. (§ 1001.36, former subd. (b) as amended by Stats.
2018, ch. 1005, § 1 (Sen. Bill No. 215) effect. Jan. 1, 2019 and Stats. 2019,
ch. 497, § 203 (Assem. Bill No. 991) effect. Jan. 1, 2020.) The statute has
since been substantially rewritten. (See Stats. 2022, ch. 735, § 1 (Sen. Bill
No. 1223) effect. Jan. 1, 2023.) The threshold requirements are now broken
out into two bearing on a defendant’s eligibility for diversion (§ 1001.36, subd.
(b)) and four pertaining to a defendant’s suitability for it (id., subd. (c)).
Eligibility factors evaluate whether defendant has a qualifying mental
disorder that was a significant factor in the crime. Suitability factors
evaluate the defendant’s treatment prospects and public safety risk. (Id.,
8
subds. (b)−(c).) While potentially significant in other contexts, these changes
do not affect our analysis on appeal because at all relevant times, the trial
court could reject diversion if a defendant failed to show he or she would not
pose “an unreasonable risk of danger to public safety, as defined in Section
1170.18, if treated in the community.” (Id., subd. (c)(4).)5
We review a trial court’s denial of pretrial mental health diversion for
abuse of discretion. (See § 1001.36, subd. (a) [“the court may, in its
discretion, . . . grant pretrial diversion”]; People v. Moine (2021) 62
Cal.App.5th 440, 448−449 (Moine).) “A court abuses its discretion when it
makes an arbitrary or capricious decision by applying the wrong legal
standard [citations], or bases its decision on express or implied factual
findings that are not supported by substantial evidence.” (Id. at p. 449.) On
appeal from a trial court’s denial of diversion, the defendant bears the burden
to prove both abuse of discretion and prejudice. (Bunas, supra, 79
Cal.App.5th at p. 867 [court’s indication that it would not grant diversion
irrespective of eligibility demonstrated lack of prejudice].)
5 Were we to wade into other threshold factors, the changes might
matter. Previously it was up to the court to decide whether the defendant
sufficiently proved a mental disorder and demonstrated that it was a
significant factor in the crimes. (§ 1001.36, former subd. (b)(1)(A)―(B), as
amended by Stats. 2019, ch. 497.) Now if a defendant has been diagnosed
with a mental disorder in the last five years, the court “shall find” that it was
a significant factor in the commission of the charged crimes absent clear and
convincing evidence otherwise. (§ 1001.36, subd. (b)(1)―(2), as amended by
Stats. 2022, ch. 735, § 1.) But because we can uphold the trial court’s
determination based on its assessment of Burns’s safety risk alone, we need
not reach any other factors.
9
B. The Trial Court Reasonably Determined That Burns Failed to Make a
Prima Facie Case That He Could Safely be Treated in the Community.
To be suitable for diversion, the court must find 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.” (§ 1001.36, subd. (c)(4).)6 In
making this determination, the court may consider the defendant’s history of
violence and criminal activity, the offenses charged, opinions of the parties
and mental health professionals, and any other relevant factor. (Ibid.)
Through its cross reference to section 1170.18, the statute defines an
unreasonable risk of danger to public safety to mean an unreasonable risk
that a defendant will commit a “super strike” offense designated in section
667, subdivision (e)(2)(C)(iv), including certain sexually violent offenses,
homicide or attempted homicide, assault with a machine gun on a police
officer or firefighter, and any serious or violent felony punishable by death or
life imprisonment. (See Moine, supra, 62 Cal.App.5th at pp. 449−450.) In
other words, “the risk of danger is narrowly confined to the likelihood the
defendant will commit a limited subset of violent felonies.” (Id. at p. 450.)
Courts have construed this requirement strictly. In Moine, the trial
court denied diversion on the sole basis that the defendant was too dangerous
to be treated in the community. (Moine, supra, 62 Cal.App.5th at p. 449.)
The appellate court rejected that finding where none of the defendant’s three
past misdemeanor convictions for drug or alcohol offenses or prior hit-and-
run involved a violent felony, let alone a super strike felony. While the
pending charges involved allegations of violence and threats of violence,
6 Section 1170.18 lays out the recall procedure for theft offenses
reclassified under Proposition 47, with subdivision (c) defining the term
“ ‘unreasonable risk of danger to public safety.’ ”
10
they were not super strike offenses. Nothing in the record suggested the
defendant was likely to commit a super strike offense if he received mental
health treatment in the community; to the contrary, two psychiatrists found
him at low risk for future assault. (Id. at pp. 450−451.) The trial court had
released the defendant into the community on bond for more than two years,
indicating it shared that view. (Id. at p. 451.) The Moine court distinguished
other cases involving defendants with long criminal histories involving
violent felonies. (Ibid.) Because that was the sole basis for the trial court’s
ruling, the Moine court remanded for a new hearing to consider the
defendant’s eligibility for diversion. (Id. at p. 452.)
People v. Williams (2021) 63 Cal.App.5th 990 (Williams) was similar
and followed Moine. The defendant stalked, harassed, and threatened a
married couple who owned an autobody shop in retaliation for what he
perceived to be racist treatment. (Williams, at p. 993.) The trial court
denied diversion, concluding he posed an unreasonable risk to public safety.
(Id. at p. 1000.) This finding was rejected on appeal under Moine. (Williams,
at p. 1003.) As the court explained, the defendant had no criminal record
apart from that case and had never actually assaulted anyone or engaged in
violence. (Ibid.) The defendant’s charges were not super strike offenses; he
showed remorse; the uncontroverted opinion of two mental health
professionals was that he posed a low risk to public safety; there was no
evidence that he owned or had access to weapons; and he was released on
bond for more than two years without incident. (Ibid.)
Our court reached a slightly different result in Bunas, supra, 79
Cal.App.5th 840. We found that the court erred in relying on the general
objectives of sentencing (Cal. Rules of Court, rule 4.410) in denying diversion.
Nevertheless, that error was harmless given the defendant’s violent history
11
and the court’s statement that the charged offenses were not suitable for
diversion. The court’s comments suggested it did not intend to grant
diversion irrespective of any improper reliance on sentencing objectives.
(Bunas, at p. 861.)
Two Proposition 47 cases distinguished by Moine also offer useful
perspective. (See Moine, supra, 62 Cal.App.5th at p. 451.) In People v. Hall
(2016) 247 Cal.App.4th 1255, the trial court reasonably found the defendant
ineligible for resentencing where he had a decades-long history of felony
convictions, including two prior strike convictions, and his criminal behavior
had become increasingly violent. In the most recent offense resulting in a
prison term, he had pressed a knife to the victim’s stomach while he was on
probation; in a prior robbery, he threatened to kill his victim. (Id. at
pp. 1265−1266.) Based on his recent criminal behavior and repeated failure
to rehabilitate, the trial court could reasonably find that he presented “an
elevated—and escalating—risk of not only threatening violence, but also
using deadly force.” (Id. at p. 1266.) The court rejected defendant’s claim
that “unreasonable risk to public safety” under section 1170.18 should only
apply to offenders who had previously committed a super strike offense.
(Hall, at p. 1266.)
People v. Jefferson (2016) 1 Cal.App.5th 235 (Jefferson) reached a
similar conclusion. A defendant who stole a printer ink cartridge from a
Kmart was denied diversion on the ground he posed an unreasonable risk of
danger to public safety. (Id. at p. 245.) The trial court reasonably relied on
his past robbery, assault, and battery convictions, combined with his multiple
rule violations in prison and multiple parole violations to conclude he was
likely to commit a super strike if resentenced. (Ibid.) The defendant
personally used a firearm in the prior robbery and personally inflicted great
12
bodily injury on the robbery victim. Based on this evidence, the trial court
could reasonably determine that the defendant was likely to commit murder,
attempted murder, or solicitation to commit murder if resentenced under
Proposition 47. (Jefferson, at p. 245.)
Turning to our record, Burns maintained in his moving brief that the
current charges, while serious, were done under the influence of drugs before
he began addressing his sobriety or mental health in custody. While his prior
convictions were serious in nature, none involved “super strike” felonies. In
Burns’s view, there was no evidence to suggest he was likely to commit a
violent felony in the future, and any such risk would be diminished by mental
health treatment.
By contrast, the People relied on Burns’s criminal history to argue that
treating him in the community would pose an unreasonable safety risk. As a
juvenile, Burns robbed a convenience store while shouting gang slurs and
threatening to harm the store clerk. He also committed a residential
burglary and commercial theft. As an adult, Burns committed two
residential burglaries in 2013 for which he was sentenced to three years, four
months in prison. After being released and while on parole, Burns was
stopped for possessing a firearm and committed another residential burglary.
Apart from the serious nature of the current offenses, the People
additionally detailed uncharged criminal conduct. In 2017, while on parole,
Burns was stopped in a vehicle with his gang affiliates in rival gang territory.
A search of the vehicle revealed a loaded semiautomatic handgun and an
additional loaded magazine in a backpack near where Burns was seated at
the time of the stop. As the occupants of the vehicle were being arrested,
Burns coached his girlfriend to claim ownership of the firearm.
Postconviction, Burns had accumulated fresh charges and prison rule
13
violations for possessing methamphetamine and physically resisting and
trying to spit on an officer who attempted to place him in handcuffs.
A review of his prison records showed five disciplinary penalties over a six-
month period in 2019.
The People described Burns’s criminal history as “extensive and
violent” and asserted it “demonstrate[d] a predatory nature that repeatedly
put members of the community at risk.” He was on active parole for two
strike priors when committing the current offenses, which “endangered the
lives of countless citizens” and began with Burns “violently assaulting his
then-girlfriend after she’d announced being pregnant.”
Burns bore the burden of establishing a prima facie case of eligibility
and suitability for mental health diversion. (Frahs, supra, 9 Cal.5th at
p. 627.) That meant he had to prove that treating him in the community
would not unreasonably risk his commission of a super strike offense. Given
our record, the trial court could properly determine that Burns failed to meet
his moving burden. The fact that Burns had not previously been convicted of
a super strike offense did not preclude the court from concluding he stood at
risk of committing one in the future. (People v. Hall, supra, 247 Cal.App.4th
at p. 1266.) In the current case, Burns physically assaulted his pregnant
girlfriend, led officers on a high-speed chase, and jumped from a moving
vehicle that then hurtled toward an unsuspecting victim. Either of the two
aggravated assaults (against the girlfriend or the driver of the second vehicle)
could easily have resulted in death. While neither did, meaning Burns has
never been convicted of a super strike, the court properly weighed the
dangerousness of his conduct in evaluating his future risk of committing a
super strike offense.
14
Burns committed these and other offenses while on parole and in the
past had coached his girlfriend to accept responsibility for his crimes. His
poor behavior continued in custody, where he managed to physically resist
officers, rack up rule violations, and use methamphetamine. While the
evaluators commented on his treatment prospects, they did not suggest he
posed a low public safety risk. (Compare with Moine, supra, 62 Cal.App.5th
at p. 451; Williams, supra, 63 Cal.App.5th at p. 1003.) His numerous prison
rule violations further supported a reasonable finding that treating Burns in
the community would present an unreasonable risk of danger to public
safety. (See Jefferson, supra, 1 Cal.App.5th at p. 245.)
We reject Burns’s contention that the trial court improperly relied on
his general criminality rather than his specific risk of committing a super
strike offense if treated in the community. The court highlighted the violent
nature of his past offenses, the fact that the current crimes were committed
while on parole, and his conduct in the current case that “endangered the
lives of countless citizens” and ended with him jumping out of a moving car
“as it continued down the street like an unmanned missile.” Considering all
these circumstances, the judge expressed “no doubt” that Burns would
commit a super strike offense if treated in the community. We cannot say
this was an unreasonable conclusion.
Burns argued that his serious crimes were mitigated because they were
a product of his substance abuse. But Burns continued to use
methamphetamine and other substances while in prison. Given his conduct
in a custodial setting, the court could reasonably find that Burns had failed to
establish a prima facie case he could be treated in the community without
15
posing an unreasonable risk of committing a super strike offense. We find no
abuse of discretion.7
DISPOSITION
The order denying Burns’s petition for mental health diversion is
affirmed.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
7 The trial court was unequivocal that any sentence shorter than the 19
years, eight months imposed “will present a grave danger to the public.”
Moreover, it expressed the view that “this case does not fall within the spirit
of the pretrial mental health diversion statutes.” Given these comments,
even if the court should have found that Burns made a prima facie case of
suitability for mental health diversion, remand would be futile where it
clearly would not have exercised its discretion to grant diversion. (See
Bunas, supra, 79 Cal.App.5th at p. 861; see also People v. Gerson, supra, 80
Cal.App.5th at p. 1080.)
16