Articles Posted in Criminal

The mental health diversion statute (Penal Code section 1001.36) was amended in the 2021-2022 Legislative Session to encourage the courts to make use of mental health diversion.  The amended law became effective on January 1 of this year.

Penal Code section 1001.36 was enacted in 2018 to address the fact that many defendants who cycle through the criminal justice system suffer from a mental illness or disorder. The purpose of the statute was to allow these defendants to petition the court to divert adjudication of their criminal case and allow the defendant to enter a regimented treatment program, as ordered by the court. Not all offenses are eligible and not all mental disorders will qualify, but the statute is broad and includes many mental disorders and crimes.  If the treatment is successful, the court will dismiss the charges against the defendant.

The law recognizes that often crimes are committed because individuals who commit crimes suffer from a mental disorder. For example, someone who is in and out of the justice system for theft might suffer from a drug addiction and the reason he or she constantly steals is to pay for that habit. Section 1001.36 attempts to address the underlying reasons for the defendant’s entry and re-entry into the criminal justice system. Another example might be a defendant who is charged with assault because he has bipolar disorder, but he has not been treated for this condition.

Not long after the invention the Model T, people in the U.S. fell in love with their cars. Nowhere was the car culture more celebrated than in California. (Perhaps you recall the hit 80’s song “Walking in L.A.” The chorus: “Walkin’ in L.A., nobody walks in L.A.”.) Back in the day, street (drag) racing was popular, and dangerous. The “sport” has been celebrated in iconic movies and in popular lore. Street racing remains a major concern for law enforcement in California and it is even more dangerous now. Not only is there street racing on our roads and highways, but there are sideshows, often in parking lots, and street takeovers.

While sideshows are not new, they have been increasing in popularity in Orange County, and indeed, all over the country. Sideshows and street takeovers involve exhibitions of speed with drivers performing stunts such as drifting, donuts, and burnouts. These exhibitions take place in parking lots or on city streets and highways. The most brazen of these stunts is what is known as “ghost riding,” where the driver exits a moving vehicle and dances around it before hopping back in. Some of these exhibitions involve hundreds of vehicles and sometimes multiples of that as viewers. Thousands of these events take place every year in California. According to the California Senate, the California Highway Patrol responded to almost 6,000 calls involving speed contests or sideshow exhibitions in 2021.   The National Highway Traffic Safety Association (NHTSA) links many fatal crashes directly to this type of risky driving.

In 2020, the California Highway Patrol initiated an effort, Communities Against Racing and Side Shows, to address these dangerous, and unfortunately popular, driving exhibitions. Identifying sideshows, street takeovers, and street racing as a major cause of vehicular deaths and injury, the CHP launched this campaign to focus on the issue with the goal of decreasing these tragic outcomes. Along with enhanced speed enforcement, CHP has created task forces with local law enforcement and social media promotions on the dangers of these driving behaviors.

You may have watched the popular reality TV series “To Catch a Predator” which aired from 2004-2008. In that series, law enforcement would set up adult men who thought they had arranged a tryst with a minor.  The scheme went something like this: an adult man would go online looking for minors (usually girls) to have sex with. On the other end of the online hookup would actually be a law enforcement officer posing as the minor. Eventually, there would be an arrangement to meet at which point, the TV show’s tapes started reeling. The unsuspecting adult would show up and before he knew it, he was tackled to the ground and arrested for soliciting a minor.

To Catch a Predator is no longer on the air but luring unsuspecting predators into the hands of law enforcement is a thriving business. Did I say business? Well, yes, it is. Across the country, self-styled vigilantes, often working with law enforcement, have set up their own predator sting operations. Going on popular hook-up or chat apps, these vigilantes posing as children, engage with adults. Sophisticated in the legal requirements to prosecute for soliciting a minor, the vigilantes are careful to set up the predator so that the elements of the crime are satisfied. These vigilantes then provide law enforcement with the evidence they need to prosecute the predators.  The vigilantes usually live stream their predator captures on Tiktok, Facebook, YouTube or other social media. These social media accounts bring in donations and/or membership fees and can have thousands of followers. Social media, such as YouTube, also monetize videos and popular uploads can make plenty of money.

But as with Catch a Predator, which went off the air after a Texas assistant district attorney — understanding that he had been exposed — shot himself as the To Catch a Predator camera crew entered his house, the vigilante operations have potentially dangerous consequences. Some law enforcement agencies and prosecutors refuse to work with these groups fearing a confrontation could turn violent, that the evidence could be altered, and because of the obvious concern that untrained civilians confronting a predator in public places may present a danger to the public.

Our country continues to witness an increasing mental illness. Studies demonstrate growing percentages of depression, suicide ideation, substance abuse, and our own observations cannot deny the growing rates of homelessness.  Inmate populations have swelled and research finds a direct correlation between the increasing mental health crisis in this country and increasing inmate populations.

Nationwide, around 64 percent of inmates held in county jail facilities have a mental illness. Any reasonable observation of the Orange County Jail population will lead to the conclusion that it is the largest mental health facility in the county. Indeed, the Orange County sheriff, Don Barnes, observed that the Orange County Jail has become just that, “by default.”  Virtually none of those inmates will receive proper health treatment in jail. Rather than addressing Orange County Jail’s mental health crisis by hiring more trained mental health professionals to treat those before they end up on jail, the county is just adding more space to house the ever-increasing inmate population.

And when those inmates have a mental health crisis, it is often law enforcement, not mental health professionals, that “treats” the patient. Law enforcement has the ultimate authority on how to treat an inmate suffering from a mental illness or crisis. That authority can override doctors’ orders. As to the treatment of inmates in a mental health crisis, a recent article by a former Orange County jail inmate described jail protocol for inmates who attempt suicide. The inmate is punished, not treated.  An inmate who attempts suicide is descended upon by guards and transferred to a cold cell (described as a walk-in refrigerator). The inmate is given only a stiff apron to put over their body (as any other article of clothing could be an instrument of suicide), which exposes much of the inmate’s body to the cold. The inmate is deprived of conversation and human contact, left alone and almost naked. The inmate subjected to these conditions will often recant their attempt and insist they are not suicidal in order to gain release from the “Suicidal” cell. This could hardly be called treatment.