Unreported / Non-Citable
Background
Ellis Templar appealed the denial of his motion for mental health diversion under Penal Code section 1001.36 in two San Diego County Superior Court cases. In case SCD295831, a 2022 prosecution charged him with assault with a deadly weapon after he followed his ex-girlfriend Heather L. and her new boyfriend Matthew B. and attacked Matthew from behind with a metal thermos, striking him about six times in the head and causing a laceration requiring 10 staples. He pleaded guilty to assault likely to cause great bodily injury (§ 245, subd. (a)(4)) and received two years' probation.
In case SCD306463, prosecutors charged him in 2025 with stalking, assault, criminal threats, and related counts based on August 2024 to February 2025 incidents involving another ex-girlfriend, Zoey R. The People alleged he called and texted her over a hundred times a day, once entered her bedroom while she slept, told her father, 'if you wanna start some s***, I'll kill you too,' and attacked her father and his girlfriend with a bamboo rod while possessing a knife; Zoey's mother also reported him for arson after finding signs of a fire in her backyard. The trial court revoked his probation in the first case.
On June 17, 2025, Templar moved for mental health diversion, submitting an evaluation by psychologist Dr. Asher Johnson. Dr. Johnson diagnosed schizoaffective disorder, borderline personality disorder, and a trauma-related disorder, found they were a significant factor in the offenses, but opined only that with adequate treatment Templar 'may not pose an unreasonable risk of danger to public safety,' conditioned on his remaining compliant with treatment. The parties agreed he was eligible; the trial court denied the motion, finding clear and convincing evidence of an unreasonable risk to public safety and, alternatively, exercising its discretion based on his history of failing to comply with treatment and his dishonesty.
The Court’s Holding
The Court of Appeal affirmed the judgment. Mental health diversion requires findings that the defendant is both eligible and suitable, and suitability includes a determination that he will not pose an 'unreasonable risk of danger to public safety' as defined in section 1170.18 — an unreasonable risk of committing a 'super strike,' which includes murder. Denial is reviewed for abuse of discretion, with factual findings reviewed for substantial evidence.
Substantial evidence supported the public safety finding. Templar had a history of stalking three victims: the surprise attack on Matthew with a blunt object, and in the later case fighting with Zoey's friend, attacking Zoey's father and his girlfriend with a bamboo rod while possessing a knife, attempting forced entry into Zoey's home, and evidence he set a fire in Zoey's mother's backyard. The record also showed threatening emails to Heather, threats to kill Zoey, telling his therapist he wanted to kill Zoey by 'unspecified military style killings,' violations of numerous court orders, a belief in revenge, and adherence to his own moral code over the law.
The court also held that Dr. Johnson's opinion that Templar 'may not pose an unreasonable risk' was markedly different from a low-risk determination and was conditioned on treatment compliance. The public safety inquiry necessarily includes whether the defendant will abandon treatment, and Templar's history of noncompliance and 'high level of paranoia' supported that he would. Because the court affirmed on public safety grounds, it did not reach the residual discretion issue.
Key Takeaways
- A trial court's denial of mental health diversion is reviewed for abuse of discretion, with factual findings reviewed for substantial evidence.
- An expert's conditional opinion that a defendant 'may not pose an unreasonable risk' if compliant with treatment is markedly different from a determination that he poses a low risk of violence.
- The public safety assessment necessarily includes determining whether the defendant will abandon treatment.
- A history of failing to comply with treatment, combined with a high level of paranoia, can support a finding that the defendant poses an unreasonable risk to public safety.
- When substantial evidence supports denial on public safety grounds, the appellate court need not reach the separate residual-discretion issue.
Why It Matters
The decision reinforces that trial courts have broad discretion to deny mental health diversion where the record shows escalating violence and only conditional expert assurances about public safety. The court's treatment of Dr. Johnson's 'may not pose an unreasonable risk' opinion as equivocal provides guidance for evaluating hedged expert testimony in diversion proceedings.
The ruling also confirms that the public safety analysis under section 1001.36 must account for the likelihood the defendant will abandon treatment, particularly given a documented history of noncompliance and paranoia. Diversion is thus reserved for defendants with a genuine prospect of successful community-based treatment.