Unreported / Non-Citable
Background
Raybon Johnson was arrested after officers responded to a report of a fight and assault with a deadly weapon involving two armed men near a pizza restaurant. An officer found Johnson in a nearby liquor store wearing a black overcoat and no shirt; Johnson appeared startled and ducked behind a merchandise aisle. After detaining him, the officer recovered a loaded semiautomatic handgun with a live round in the chamber and seven rounds in the magazine. The People charged Johnson with carrying a concealed firearm and carrying a loaded firearm in public, alleging he was armed with or used a weapon.
Johnson petitioned for mental health diversion under Penal Code section 1001.36, citing Borderline Intellectual Functioning, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Attention-Deficit/Hyperactivity Disorder. He submitted reports from psychologists Dr. Catherine Scarf and Dr. Mark Souris. Dr. Scarf concluded Johnson did not present an unreasonable risk to public safety and was not likely to commit a new violent felony such as homicide or a sexually violent offense. Dr. Souris found no particular propensity for physical violence but identified a substantial risk of criminal recidivism without substance abuse treatment. The People filed no written opposition and presented no evidence or argument at the hearing.
The trial court denied the petition, citing the loaded handgun and the probation report's prior convictions for carrying a loaded firearm, robbery, identity theft, and taking a vehicle without consent. The court stated it had serious public safety concerns and found Johnson's needs were better handled by the criminal system. Johnson then pleaded no contest to carrying a concealed pistol under a plea agreement; the court dismissed the loaded-firearm charge, imposed the two-year middle term with 1,053 days of credit (time served), and issued a certificate of probable cause.
The Court’s Holding
The Court of Appeal reviewed the denial for abuse of discretion. The trial court denied diversion on the fourth suitability requirement—whether Johnson, if treated in the community, would pose an unreasonable risk of danger to public safety—and did not reach the other suitability or eligibility requirements. The appellate court found the trial court apparently did not have or consider one of the two psychological reports submitted with the petition, even though both were attached: at the hearing Johnson's counsel said she did not have one report available, the record was unclear whether the court had reviewed Dr. Scarf's report, and the People's efforts to obtain information from the clerk's office were unsuccessful.
Because Johnson argued substantial evidence did not support a finding that he was likely to commit a super strike offense, the Court of Appeal concluded it was appropriate for the trial court to consider, in the first instance, that question based on both psychologists' reports. The governing standard is an unreasonable risk of committing a violent felony listed in section 667, subdivision (e)(2)(C)(iv), as incorporated through section 1170.18—not merely a general risk of recidivism.
The court conditionally reversed the judgment and directed the trial court to rule on the petition after reviewing both reports, considering eligibility under section 1001.36, subdivision (b), and suitability under subdivision (c)(1)-(3). If the trial court denies the petition after that review, it is to reinstate the judgment.
Key Takeaways
- A trial court deciding mental health diversion must account for the expert reports submitted with the petition before determining whether the defendant poses an unreasonable risk of danger to public safety.
- Under Penal Code sections 1001.36 and 1170.18, that risk means an unreasonable risk of committing a violent super strike felony listed in section 667, subdivision (e)(2)(C)(iv), not merely a general risk of recidivism.
- When the record is unclear whether the trial court reviewed material evidence, the Court of Appeal may conditionally reverse and remand for the trial court to consider the complete record in the first instance.
- A conditional reversal preserves the judgment: if the trial court denies the petition after proper reconsideration, it must reinstate the judgment.
Why It Matters
The decision reinforces that a diversion ruling must rest on the whole record, especially expert evidence bearing on the specific statutory question whether the defendant would pose an unreasonable risk of committing a super strike. It also shows that an appellate court may remand for reconsideration rather than reweigh the evidence itself when the record suggests the trial court may have overlooked a submitted report.
The ruling highlights the distinction between general criminal recidivism and the narrower public-safety standard for mental health diversion. By directing review of both psychological reports, the court ensured the public-safety determination would rest on a complete record concerning Johnson's diagnoses, treatment prospects, and risk of violent reoffending.