The opinion
Filed 2/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B311538
(Super. Ct. No. 2020023820)
Plaintiff and Respondent, (Ventura County)
v.
GUADALUPE MOLINA
PACHECO,
Defendant and Appellant.
About 2,000 years ago, one of history’s first legal scholars,
Cicero, gave us the Latin phrase: “Salus populi suprema lex
esto.” The English translations vary but in legal contemplation,
it has one accepted translation: “The safety of the community is
the highest law.” (Gilmer, Cochran’s Law Lexicon (5th ed. 1973)
p. 265.) The wisdom of this principle remains as evident today as
it was 2,000 years ago. Here, the trial court used common sense
to implement this principle by denying pretrial mental health
diversion to appellant, who suffers from schizophrenia and is
addicted to methamphetamine. While under the influence of
methamphetamine, using a cigarette lighter and an accelerant,
appellant intentionally set fire to dried vegetation in a populated
rural area during the late summer fire season. In view of the
wildfire crisis in California, we should know that this
combination of facts and circumstances is rife with the
probability of widespread property destruction and loss of life.
The trial court was unwilling to gamble with the safety of the
community. In the exercise of its sound discretion, it ruled that
criminal conviction with formal supervised probation, instead of
diversion, was appropriate. As we shall explain, we are in
agreement.
Guadalupe Molina Pacheco appeals from the judgment
entered after he pleaded guilty to arson of forest land in violation
of Penal Code section 451, subdivision (c).1 The trial court
suspended the imposition of sentence and placed appellant on
formal probation on condition that he serve 330 days in Ventura
County Jail with credit for 325 days served. As a further
condition of probation, he was released to Telecare Corporation, a
mental health facility.
Appellant contends that the trial court abused its
discretion in denying his request for pretrial mental health
diversion pursuant to section 1001.36. The denial was based on
the court’s finding that he posed an unreasonable risk of danger
to public safety.
We vacate sentencing fees imposed contrary to Assembly
Bill 1869 (A.B. 1869, 2019–2020 Reg. Sess.). In all other
respects, we affirm.
All statutory references are to the Penal Code unless
1
otherwise stated.
2
Factual Background
In August 2020 appellant set fire to brush in a river bed
near a homeless encampment and a ranch. The fire burned
“approximately three acres of native vegetation” and damaged
some avocado trees. The Ventura County Fire Protection District
requested restitution of $27,476.04 to cover the cost of
extinguishing the fire. The probation report noted:
“[A]pproximately 15 units responded from several local Ventura
City Fire departments, in addition to two large Blackhawk
helicopters, and a specialized airplane.”
Appellant told sheriff’s deputies that he had “heard voices
in his head tell him to start a fire in the river bottom where he
lived. He then lit [two BIC] lighters and sprayed a hairspray can
into the brush, starting the fire.” An arson report “concluded that
the cause of the fire was ‘a handheld open flame device applied to
a receptive fuel bed of dried vegetation.”
Dr. Randy Wood, a clinical psychologist, prepared an
evaluation of appellant’s mental health. Appellant told Dr. Wood
that “he has been hearing . . . voices since he was a child and
tries to hide it from other people so he won’t be judged as ‘sick in
the head’ or mentally ill.” Before starting the fire, “he had been
hearing voices that day from ‘Smurfs’ and they told him that ‘his
ex-wife . . . had been taken by some men into the forest and they
were going to do bad things to her.’ . . . [T]he voices told him to ‘go
light up the forest to help her get away from the bad men,’ so he
lit the hairspray to start the brush on fire to enable her to escape
to safety.” But during an interview conducted by a probation
officer, appellant said he had lit “a fire so he could smoke
methamphetamine.”
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On the day of the arson, deputies concluded that appellant
was under the influence of a controlled substance. “[A] urinalysis
. . . confirmed he was under the influence of methamphetamine.”
Appellant was 30 years old when he set the fire. He
“reported that he has been using methamphetamine on a daily
basis since the age of 16 and is a chronic user. He has had
previous arrests for being under the influence of
methamphetamine . . . .” According to Dr. Wood, “[h]is pattern of
methamphetamine use meets the DSM-5 criteria for a diagnosis
of ‘Stimulant Use Disorder, severe, currently in a controlled
environment’ . . . .”
Dr. Wood also diagnosed appellant as suffering from
schizophrenia. Dr. Wood noted, “[H]e has been in a controlled
setting while in custody . . . and has had four months of not using
methamphetamine and has been observed . . . to be having
frequent auditory hallucinations, talking to himself and laughing,
and describing ongoing conversations with ‘Smurfs.’”
Dr. Wood opined that, if certain conditions are met,
appellant “will not pose an unreasonable risk of danger to public
safety if treated in the community.” (Underlining omitted.) Dr.
Wood explained: “[Appellant] does not have any history of other
incidents of arson behavior and doing something like this seems
very atypical and uncharacteristic of him. His act of arson w[as]
likely due to being psychotic and delusional at the time. He is
willing to take antipsychotic medications which control these
symptoms. If he remains compliant with taking this medication
regimen, and does not use any methamphetamine, then he would
be unlikely to reoffend. It is the clinical opinion of this examiner
that, as long as he takes his psychiatric medication on a
consistent basis, and stays abstinent from using
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methamphetamine, he would not likely pose an unreasonable
risk of danger to public safety if treated in the community.
However, if he does not take his antipsychotic medication as
prescribed and/or returns to using methamphetamine, then he
would become unstable and psychotic and be likely to reoffend in
some bizarre manner.”
Probation Report
The probation report states: “[Appellant’s] actions of
starting a large brush fire near a highly populated homeless
encampment, and a large ranch . . . , epitomizes the danger that
[he] poses to the community. [Appellant] has a prior record that
consists mostly of misdemeanor drug convictions that reveal a
pattern of drug use and addiction that spans nearly a decade. Of
major concern is that [appellant] said he lit the fire so that he
could smoke methamphetamine. It appears his drug use
definitely played a significant role in the present matter.
Although the effects of drug use may have influenced
[appellant’s] actions, the fire he set caused a lot of damage, and it
could very well have caused injuries to anyone nearby, or even
worse, loss of human life.”
People’s Opposition
The People opposed mental health diversion because
appellant “poses an unreasonable risk of danger to public safety.”
The People argued: “Due to [appellant’s] underlying mental
health disorder, coupled with his drug use, [he] had auditory
commands telling him to start a fire; which he obeyed.”
“[Appellant] will not comply with treatment as evidenced by the
fact that he has seemingly been self-medicating with
methamphetamine since the age of 16.”
5
Trial Court’s Ruling
At the hearing on appellant’s request for diversion, defense
counsel told the trial court that Dr. Erin Haven, a “clinical
director” at Telecare Corporation, had “personally arranged for
[appellant’s] treatment” should he be granted diversion. Dr.
Haven’s “assessment and evaluation of [appellant] is that he
would do best in an outpatient setting living with his aunt in
Santa Paula where he can continue to work . . . .” Counsel stated,
“I believe that just a simple medication could ensure the public
safety here.”
The trial court said: “Although it appears that [appellant]
meets the [diversion] criteria, my tentative would be to deny it in
this instance. And I’ll tell you why. Because the offense that
brings him before the Court is arson. That is the starting the
brush fire intentionally,” although his acts were “clearly a result
of some psychological condition or at least that’s certainly what it
appears to be.” The court explained, “I can and do take judicial
notice of how dangerous brush fires are and have been to this
community in particular, and given these current climate
conditions and the likelihood or possibility that such conduct
could create a mass-casualty event is not small. And had this
been a different type of offense I would probably be inclined to
grant the motion.”
Defense counsel objected, but acknowledged that “brush
fires have devastated and ravished through Ventura County,
especially with [the] Thomas Fire, and throughout this state, and
I know the Court might be hesitant to have any hand in allowing
something like that to happen in the future.”2 “However,”
2Pursuant to Evidence Code sections 452, subdivision (h)
and 459, subdivision (a), we take judicial notice that, when the
6
counsel continued, “we can’t restrain [appellant] for his whole life
prospectively. He will be out in the community at some point and
I believe that if we can get him at this juncture into mental
health treatment where he keeps over his head the chance of a
felony conviction and going to prison that he is in a good position
not to reoffend and to participate in treatment.”
The trial court rejected counsel’s argument in favor of
diversion. It ruled that appellant poses an unreasonable risk to
public safety if treated in the community without criminal
conviction and supervised probation.
Mental Health Diversion
“Section 1001.36 gives trial courts the discretion to grant
pretrial diversion for individuals suffering from certain mental
health disorders.” (People v. Frahs (2020) 9 Cal.5th 618, 626.) “A
trial court may grant pretrial diversion under section 1001.36 if
the court finds: (1) the defendant suffers from a qualifying mental
disorder; (2) the mental disorder was a ‘significant factor’ in the
commission of the charged offense; (3) a qualified mental health
trial court denied diversion in January 2021, Ventura County
was in the middle of a record-breaking drought <https://www.
vcstar.com/story/news/2021/09/30/california-drought-ventura-
county-cities-mark-driest-year-record/5832057001> [as of Jan. 6,
2022], archived at <https://perma.cc/U8Gb-5MVL>. We also take
judicial notice that the Thomas Fire “was a massive wildfire that
affected Ventura and Santa Barbara Counties . . . in December
2017. It burned approximately 281,893 acres (440 sq mi;
114,078 ha) before being fully contained on January 12, 2018,
making it the largest wildfire in modern California history at the
time” <https://en.wikipedia.org/wiki/Thomas_Fire> [as of Jan. 6,
2022], archived at <https://perma.cc/2NP7-CZYJ>.
7
expert opines the defendant’s symptoms will respond to
treatment; (4) the defendant consents to diversion and waives his
or her speedy trial rights; (5) the defendant agrees to comply with
the treatment as a condition of diversion; and (6) [the criterion at
issue here] ‘the defendant will not pose an unreasonable risk of
danger to public safety, as defined in Section 1170.18, if treated in
the community.’ (§ 1001.36, subd. (b)(1)(A)-(F).)” (People v. Moine
(2021) 62 Cal.App.5th 440, 447-448 (Moine), italics added.)
As to the sixth criterion, “[s]ection 1170.18 . . . defines
‘unreasonable risk of danger to public safety’ as ‘an unreasonable
risk that the petitioner will commit a new violent felony within
the meaning of clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667.’ (§ 1170.18, subd. (c).) The violent
felonies encompassed in this definition ‘are known as “super
strikes” and include murder . . . .’” (Moine, supra, 62 Cal.App.5th
at p. 449.) The list does not include arson of forest land. But this
is not determinative. The list speaks to crimes that may be
committed in the future. “All murder . . . that is committed in the
perpetration of . . . arson . . . is murder of the first degree.”
(§ 189, subd. (a).) Thus, a person would commit a super strike –
first degree murder – if he intentionally set fire to forest land and
an unintended death occurred as a result of the arson.
Standard of Review
We review the trial court’s denial of mental health
diversion for abuse of discretion. (Moine, supra, 62 Cal.App.5th
at p. 448.) “‘“[T]he term judicial discretion ‘implies absence of
arbitrary determination, capricious disposition or whimsical
thinking.’” [Citation.] “[D]iscretion is abused whenever the court
exceeds the bounds of reason, all of the circumstances being
considered.”’” (People v. Hamlin (2009) 170 Cal.App.4th 1412,
8
1450.) “It is appellant’s burden on appeal to establish
an abuse of discretion and prejudice.” (People v. Albarran (2007)
149 Cal.App.4th 214, 225.)
No Abuse of Discretion
The trial court did not exceed the bounds of reason in
finding that appellant had failed to satisfy the sixth criterion for
pretrial mental health diversion – if treated in the community, he
would not pose an unreasonable risk to public safety within the
meaning of section 1170.18. Dr. Wood opined that, “as long as
[appellant] takes his psychiatric medication on a consistent basis,
and stays abstinent from using methamphetamine, he would not
likely pose an unreasonable risk of danger to public safety if
treated in the community.” (Italics added.) “[T]he use of
methamphetamine would likely exacerbate his psychotic
symptoms.”
The record supports a reasonable belief that appellant will
not refrain from using methamphetamine if he is treated in the
community without conviction and supervised probation. Mental
health diversion may provide some motivation for remaining
drug-free and compliant with treatment for mental illness. In
theory, felony probation with state prison “hanging over his
head,” will provide even more motivation. Appellant told Dr.
Wood that he “would comply with taking medication prescribed
by a psychiatrist, attend a treatment program and would stop
using any methamphetamine.” But before committing the arson
offense, appellant had used “methamphetamine on a daily basis
since the age of 16,” i.e., for the previous 14 years. His prior
arrests for being under the influence of methamphetamine had
not deterred him from continuing his abuse of the drug. Because
9
of his 14-year history of chronic methamphetamine abuse, his
resolve to stop using the drug is dubious.
Dr. Wood opinion that if appellant “returns to using
methamphetamine, then he would become unstable and psychotic
and be likely to reoffend in some bizarre manner.” The voices
that allegedly told him to start the brush fire could return and
direct him to start another similar fire. Or, based on his
statement to a probation officer that he had lit “a fire so he could
smoke methamphetamine,” appellant could start another fire for
the same purpose. In view of the extreme drought conditions in
Ventura County at the time of the trial court’s denial of diversion,
a similar fire could have had a devastating effect. (See ante, pp.
6-7, fn. 2.) The fire could have spread and caused the death of
persons living in the area or fire department personnel fighting
the fire. According to the probation report, appellant started the
brush fire “near a highly populated homeless encampment.”
Thus, the trial court acted within its discretion in declining
to conclude that appellant “will not pose an unreasonable risk of
danger” of committing a “super strike” – arson murder − if
treated in the community pursuant to pretrial mental health
diversion. (§ 1001.36, subd. (b)(1)(F).)
Sentencing Fees
The People note that “the record is unclear as to which
[sentencing] fees were imposed or struck.” It appears that the
trial court imposed, but stayed because of inability to pay, a
$2,121 presentence investigation fee (former § 1203.1b), a $107
monthly probation supervision fee (ibid.), and a $481.76 criminal
justice administrative fee (former Gov. Code, §§ 29550.1-29550.3).
Appellant claims, and the People concede, that these fees must be
vacated pursuant to A.B. 1869. We agree. A.B. 1869 added
10
section 1465.9 and Government Code section 6111, which provide
that on and after July 1, 2021, the unpaid balance of such fees
imposed by the court “shall be unenforceable and uncollectible
and any portion of a judgment imposing those costs shall be
vacated.” (§ 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).)
Disposition
The order imposing a $2,121 presentence investigation fee
(former § 1203.1b), a $107 monthly probation supervision fee
(Ibid.), and a $481.76 criminal justice administrative fee (former
Gov. Code, §§ 29550.1-29550.3) is vacated. In all other respects,
the judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
11
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Nancy Wechsler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Yun K. Lee, Deputy Attorney General,
for Plaintiff and Respondent.