New California law allows some mentally ill offenders to get treatment, possibly get charges dropped

Just after 3 a.m. on April 7, Matthew Gioia pressed the accelerator of his white Hyundai Elantra, leading Carlsbad police on a one-mile pursuit that reached speeds of 80 mph before the car crashed.

Gioia’s arrest would have been an otherwise routine skirmish between police and a motorist if not for what happened when he went to court a month later. There, he was among the first defendants to test a new controversial state law that allows people with certain mental illnesses to go into a pretrial diversion program, receive treatment and ultimately erase the charges against them.

Gioia was charged with felony evading police, and his lawyer George Gedulin sought the treatment option. In court papers, the attorney said Goia had an extensive mental health history, was a diagnosed schizophrenic and was receiving treatment at a Carlsbad facility.

“I think this case was exactly the kind of case the law was written for,” Gedulin said in an recent interview.

Prosecutors opposed the motion and argued Gioia should not be given diversion, but San Diego Superior Court Judge Harry Elias disagreed. Gioia is now in treatment and ordered to report regularly back to the judge to see whether he is complying with his treatment.

The mental health diversion law, AB 1810, was slipped inside a massive budget trailer bill, stuffed with other provisions, that was passed by the Legislature and signed by Gov. Jerry Brown on June 27. The law is intended to steer people with mental health conditions into treatment and away from jail or prison. It gives judges discretion to order defendants into a pretrial diversion program for treatment instead of prosecution.

If the person’s mental health treatment is ultimately deemed successful — the diversion can last up to two years — then all charges will be dropped. If at any time the judge determines the treatment isn’t working, the criminal case can start again.

The law was hailed as a breakthrough by advocates for the mentally ill and criminal justice reformers, but drew fierce and ongoing opposition from law enforcement and prosecutors.

Gioia’s is one of only two cases in San Diego in which diversion has been granted — both by Elias. In 17 other cases, petitions by defendants arrested for crimes ranging from residential burglary to vandalism have been turned down, according to Assist. Dist. Atty. David Greenberg.

In December, the 4th District Court of Appeal issued a ruling that added a new wrinkle to the debate in the case of Patrick Woldmskel, who was convicted of multiple felony charges of domestic violence, assault, false imprisonment and dissuading a witness. He was sentenced to 29 years in prison in September 2017.

The court upheld the conviction but sent the case back down for a re-sentencing, reasoning that Woldmskel should be given a mental health diversion hearing. While the law was passed after he was convicted, the court said it could be applied retroactively in this case.

Last week, the state Supreme Court decided it would also step into the issue. The court accepted a case decided in Orange County in September that said the law could be applied retroactively to cases that were not yet final. That means it would apply to defendants such as Woldmskel — who was convicted but is still appealing — and potentially thousands of others others who were charged before the law became effective and whose cases are still in the pipeline.

Greenberg said Woldmskel had argued at his sentencing hearing that he had a mental illness, but Superior Court Judge David M. Gill apparently was not persuaded to lessen his punishment. While it is unclear what will happen at a second hearing, the appeals court noted that if Gill decides Woldmskel is eligible for diversion and he successfully completes a program, the charges would be dropped.

The ruling can’t be cited as precedent in other cases and applies now only to Woldmskel. Yet that possible outcome of charges being dropped is the kind of scenario that fueled opposition to the law.

In its initial form, the diversion law said anyone charged with a crime was eligible. After a sustained outcry from law enforcement, the Legislature amended the law and said certain crimes were not eligible for pretrial diversion, including murder, manslaughter, rape and child sexual abuse.

“We may see more of those,” Greenberg said, referring to cases in which the law is applied retroactively. That could open many cases up for a diversion hearing.

“We always said this law is way too broad,” he said. “And this is an exact example of that. This decision is one of the consequences of the legislation.”

San Diego prosecutors have opposed pretrial mental health diversion in every case in which it has been sought. A review of some of those cases shows the district attorney’s office contends the law is unconstitutional on a variety of grounds, including that it is too vague and violates victims’ constitutional rights.

In court papers in each case, the prosecutors call the law “a dangerous change to the manner in which criminals with mental health diagnoses” are treated in the criminal justice system. And they also argue that defendants may have a qualifying mental disorder but lack a specific plan for treatment — which should disqualify them from diversion.

For the most part, those arguments seem to be winning.

For example, James Haider was arrested in June on a misdemeanor vandalism charge for hurling a rock through the window of a Massage Envy store in Mission Valley in September 2016.

Haider has a long history of mental health problems, court records said, and has a diagnosis of schizophrenic disorder. At the time of the incident, he was living at a board-and-care facility but had stopped taking his medications. He was agitated and hearing voices, court records say.

Defense lawyers submitted a psychiatric report detailing his mental illness, but prosecutors countered that he had not “credibly demonstrated” that he would respond well to treatment. After a hearing, a judge denied diversion — the court records don’t spell out why — and Haider ended up pleading guilty, getting sentenced to time already served in jail and placed on three years’ probation.

Gedulin, Gioia’s lawyer, said he was able to present a detailed plan of treatment, and had a doctor testify about the diversion program — and did not simply present diagnostic records showing his client was mentally ill and willing to get treatment.

“Most people are submitting statements of diagnoses, and that’s it,” he said.

Moran writes for the San Diego Union-Tribune.