Reported / Citable
Background
Paul Henn was charged with willfully inflicting corporal injury on his girlfriend (Pen. Code, § 273.5, subd. (a)), possessing a smoking device, and possessing a controlled substance, with a deadly weapon allegation on the first count. At the preliminary hearing, the girlfriend testified that in November 2024, when she was nine months pregnant, she picked up Henn, who seemed to be under the influence of a substance. While she drove on the freeway, he choked her with a guitar amplifier cord for a few seconds. She had trouble breathing, though she denied feeling pain, and he stopped when she put her hand between the cord and her neck. His roommate saw Henn in the back seat with a hand on her neck and called police. A photograph of her bruised neck was admitted. Officers found a pipe and methamphetamine on Henn, who remained out of custody on bond.
Henn moved for mental health diversion, submitting residential treatment records and a forensic evaluation by Dr. Michelle Adams. She diagnosed ADHD, posttraumatic stress disorder, and several severe substance use disorders in early remission. She opined that these disorders significantly contributed to the offense, would respond to treatment, and would not make him an unreasonable danger if treated outside a secure setting, and she recommended at least 12 months of residential treatment. She noted she lacked his criminal history records. The prosecutor, without written opposition, cited a prior domestic violence battery conviction and an uncharged 2022 incident with the same woman involving strangulation. Defense counsel said the conviction was 15 years old and expunged and that the incident was tied to alcohol abuse and untreated mental health issues. The trial court found a mental health issue present, found Henn unsuitable because of the risk of a super strike, and declined a further evidentiary hearing. Henn then pleaded no contest under a negotiated plea and received three years of formal probation, including a one-year dual diagnosis program; the remaining counts and allegations were dismissed.
The Court’s Holding
The Court of Appeal affirmed. Reviewing the ruling for abuse of discretion and the factual findings for substantial evidence, it held that the circumstances of the charged offense alone sufficed to support the finding that Henn would pose an unreasonable risk of committing a super strike if treated in the community. He used a weapon directly against the victim while she drove on a freeway, endangering her, the unborn child, and other motorists. The choking ended only after she took defensive action, not because he stopped voluntarily. The court distinguished People v. Whitmill, where the defendant fired a gun into the air as a warning and did not use it directly against anyone. It also relied on Henn's criminal history as showing a pattern of domestic violence, even though the details of the prior conviction and uncharged incident were not developed. Whitmill and People v. Moine involved defendants without violent records.
The court found Dr. Adams's favorable dangerousness opinion did not compel a different result, because it was expressly qualified: she had not seen the criminal history on which the trial court relied, and her report did not indicate that Henn had told her about it, which could suggest he was not fully forthcoming. The grant of bond did not undermine the finding. A bond decision may be relevant to diversion but is not necessarily dispositive, and Henn had lived in the community only about six months before the hearing, unlike the defendants in Moine and Gomez. His earlier efforts at rehabilitation had failed. Probation under the plea was not inconsistent with denying diversion because it can offer added supervision, and People v. Tourville was distinguished because the court there denied diversion despite finding no super strike risk. The court did not reach Henn's alternative residual-discretion argument because the trial court never exercised that discretion. The judgment was affirmed, and the opinion was later certified for publication.
Key Takeaways
- A trial court may base a finding of unreasonable risk of danger under section 1001.36, subdivision (c)(4), primarily or even entirely on the circumstances of the charged offense.
- Choking a pregnant partner with a cord while she drives on a freeway was held sufficient evidence of a risk of committing a super strike, in part because a weapon was used directly against the victim.
- A mental health expert's opinion that a defendant is not dangerous carries less weight when the expert did not review the criminal history the trial court relied on.
- A prior domestic violence conviction and an uncharged incident can support a finding of a pattern of violence even where their details were not fully developed.
- Pretrial release on bond and a later grant of probation do not by themselves show a defendant is suitable for diversion, though a bond decision may be relevant.
Why It Matters
Henn, now a published decision, confirms that eligibility and treatment progress do not guarantee diversion under section 1001.36. Trial courts retain discretion to find a defendant unsuitable when the facts of the offense and the defendant's history support an unreasonable risk of a super strike. Defense counsel should expect courts to scrutinize whether the supporting expert reviewed the defendant's full criminal history, and should address any gaps in the expert's information before the hearing.
The opinion also narrows the force of the bond-inconsistency argument drawn from Moine and Gomez, treating a bond grant as relevant but not dispositive and noting the short time Henn had spent in the community. The residual discretion question was left open, so the decision does not address when a court may deny diversion to an otherwise suitable defendant.