Filed 4/26/22 P. v. Venturine CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE

,
Plaintiff and Respondent,

v.

MARK ANTHONY VENTURINE

,
Defendant and Appellan t

. 2d Crim

. No. B 3 11624 (Super. Ct. No s

. 201 8004449, 2019 027003, 2019 033455 ) ( Ventura County )

Mark Anthony Venturine appeals the judgment entered after he pleaded no contest to five counts of making crimina l
threats (Pen. Code

, 1 § 422 )

, and one count each of inflicting corporal injury on a current or former cohabitant ( § 273.5, subd. (a)) and stalking ( § 646.9, subd. (b)) . Appellant also admitted a prior strike and serious felony conviction (§ § 667 , subds. (a)(1),

1 All further undesignated statutory references are to the Penal Code.2

(c)

- ( e ), 1170.12 , subds. ( a ), (c) )

. The trial court sentenced him to 10 years in state prison

. 2 Appellant , who has been diagnosed with mental disorders including obsessive compulsive disorder and al cohol use disorder

, contends t h e court abused its discretion in denying his request for mental health diversion under section 1 0 01.36

. We conclude the request was properly denied because appellant failed to present a qualified mental health expert’s opinion that

appe llant’s “symptoms o f the mental disorder motivating the criminal behavior would respond to mental health treatment,” as required under section 1001.36, subdivision (b)(1)(C)

. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY
I n December 2017, appellant and his girlfriend Pauline M. got into an argument after she saw a text message from another

woman on his cellphone. A fter Pauline asked appellant to leave her house, he told her “he would start with [her] car, then he
would rui n [her] house and then he would find [her] and kill [her]. And then he said he would break [her] son’s neck.” Appellant , who had been drinking alcohol, also pushed Pauline and punc h ed a hole in her bedroom door.
In July 2018, appellant went to Pauline ’s house and told her he was “cleaning up his act” and was residing in a sober living facility. Appellant began drinking beer and yelled at Pauline, who asked him to leave. Appellant pushed Pauline to the ground, straddled her, and repeatedly punched her in the face
and head. Pauline, who was bleeding from her head, nose, and

2 Appellant pleaded no contest in three separate cases and his appeal s in the three cases were consolidated for purposes of argument and decision.3

ear, hit appellant with a flashlight in self

- defense. Appellant told
Pauline “I’m gonna kill you” a nd asked, “Where would you like me to bury your body?” Paul ine ran to a neighbor’s house and appellant told the neighbor, “You’re next. I’m coming for you.”
Several hours after his release from jail in August 2018, appellant went to Pauline’s place of employment and put a note on her car that said, “I’m out. Be ca reful

. ”
In August 201 9 Pauline saw appellant walking in front of her place of employment , in violation of a domestic violence restraining order. Appellant looked for Pauline’s car but did not
see it beca use she had driven her father’s car to work that day. Following his release from jail in August 2019, appellant began a dating relationship with Jillian N. Jillian allowed appellant to stay at her residence so long as he did not consume
alcohol. In September 2019, Jillian found alcohol in the
bathro om appellant used and asked him to leave. Appellant left without taking several of his items from the house. He subsequently sent Jillian numerous text and voicemail messages threatening to kill her. In one such message he stated : “I will find you and I will fucking kill you you understand I know where you work I know [where] your car is located I know where you sleep do you wanna fuck with me like this you son of a bitch I will destroy you I will fucki ng kill you and I will kill your son I will come get you I’m on my way right fucking now.” Almost two months later, appellant sent Paulin e text messages stating among other things “y ou are a dead wom [ a ] n walking you had to be very careful within this next couple days because I am right there behind you I will find you and I will fucking kill you.” Appellant was subsequently charged in case no.
201800 4449 with three counts of making criminal threats ( § 422 )

, battery ( § 243 , subd. (e)(1)), and one count each of misdemeanor4

vandalism ( § 594 , subd. (b)(2)(A)), disobeying a domestic relations court order ( § 273.6 , subd. (a)), and inflicting corporal injury on a
current or former cohabitant ( § 273.5 , subd. (a)). In case no.
201 9027003 , appellant was charged with stalking ( § 646.9, subd. (b)) and disobeying a domestic relations court order. In case no.
2019033455 , appellant was charged with two counts of making criminal threats, one count of vandalism, and two counts of making a nnoying telephone calls ( § 653m , subd. (a)). It was further alleged in all three cases that appellant had a prior strike and serious felony conviction.
In September 2020, appellant filed a request for mental
health diversion in all three cases pursuant to section 1001.36. In support of his request, appellant offered progress notes purportedly prepared by his psychiatrist, Dr. Nomi Fred rick

, i n Se ptember 2015. The n otes state among other things that appellant had been diagnosed with major depression, persistent depressive order, obsessive compulsive order (OCD), alcohol use disorder, and mild neurocognitive disorder due to a traumatic brain injury (TBI)

. Appellant reported that he began exhibiting symptoms of OCD when he was a teenager and was originally diagnosed with
both OCD and bor derline schizophrenia. He went to college on a football scholarship but was cut from the team due to his excessive drinking. After gra duat ing from college

, he successfully completed a residential treatment program and in 1997 he began
work ing as a teaching assistant and football coach at Westlake High School. He sub sequently suffered the TBI as t he result of a
2000 car acciden t

. Appellant “had mu ltiple involuntary psychiatric hospital izations over the years” and “was first psychiatrically hosp italized in his thirties” after sustaining his
TBI

. He also reported that when he was sober he experienced5

“insistent checking, counting, rereading, rewriting a nd hand[]washing” and “spends over half his day checking and counting.” Appellant sought diversion based on his OCD and urged
the court to find that that the disorder pl ayed a significant role in his commission of the charged offenses , as provided in
subdivision (b)(2) of section 10 01.36, because he has a documented history of drinking alcohol when he “loses control of
his OCD.” After noting that he had gone through 1 2 inpatient
alcohol rehabilitation programs by 2015
, appellant offered that
“those that tried to help” him “often thought it was his alcoholism to blame. But truly, it was the change in circumstances (the ending of a program, the change in living situations, the lack of a structured environment) that would ignite his OCD causing him
to self medi c ate with alcohol.” Appellant also noted that he had
told Dr. Fredrick “he plans alcoholic binges to escape from his
OCD brain ” and “does not know how to stop checking or counting
wit hout being intoxicated . . . .” Appellant added that “[the d]efense fears,

. . . like so many people that tried to help [appellant] in the past, the Court will blame alcohol as the primary culprit, and although it is a factor, it is truly his menta l illness driving his actions.”
To satisfy the requirement that a mental health expert opine the symptoms of appellant’ s OCD would respond to mental
health treatment ( § 1 0 01.36, subd. (b)( 1 ) (C) ), appellant offered a March 2018 “client plan” prepared by Ricardo Juarez, his “case manager” at Ventura County Behavioral Health. Appellant
stated “[i]t is [ the ] Defense’s position , that this plan should be implemented in addi tion to a residential program.” Appellant
also attached a letter in dicating he had been accepted into a

r esidential alcohol and drug treatment program in Los Angeles

.6 I n opposing appellant’s request for mental health diversion, the prosecution noted that appellant had failed to provide a qualified mental health expert’s opinion that the symptoms of appella nt’s mental illness that motivated his criminal behavior
would respond to treatment as required under subdivision (b)( 1 ) (C) of section 1 0 01.36

. The prosec ution also asserted that appellant’s OCD was not a significant factor in his commission of
the charged o ffenses , and that his proposed treatment plan “is not specific enough ” in that “[ i ] t doesn’t address the medicine he would be taking or exactly what he would be doing t o reach the goals they stated.” Finally, the prosecution argued that appellant presented a danger to the public if released.
The court denied the request for mental health diversion following a hearing

. The court reasoned: “I agree with the People. The plan appears to be lacking in specifics. He may very well be OCD, but it s eems like there’s some thing else going on here. But even beyond that, the behavior that’s alleged to be exhibited here multiple times with the criminal history he ’s got, I completely understand the letters that these two alleged victims
have submitted and why they would be fearful of him. And it’s not just these two People. It seems like one of them, I think, he was in a relationship with for less than two weeks. So if he gets out, there could very well be additional victims.”
Pursuant to a negotiate d agreement , appellant subsequently pleaded no contest to various charges and admitted the prior conviction allegations in exchange for a 10

- year prison

sentence. A fter a ppellant filed notices of ap peal in all three cases
and the trial court issued certificates of probable cause , th e appeals were consolidated for purposes of argument and decision

.7 DISCUSSION
A ppellant c ontends the trial court erred in denying his request for mental health diversion under section 100 1.36. We
conclude otherwise.

“ Section 1001.36 authorizes courts to grant pretrial
diversion to defendants who meet the statute ’s six qualifying criteria or eligibility requirements.

. . . If mental health diversion is granted and the defendant satisfactorily completes the court ’s approved mental health treatment program, then the defendant ’s criminal charges are required to be dismissed and the defendant ’s arrest on the charges ‘ shall be deemed never to have occurred. ’ (§ 1001.36 , subd. (e).) ” ( People v. Gerson (2022) 74 Cal.App.5th 561, 571

- 572 ( Gerson ) .)

“ The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. [Citations.] The court ‘ may ’ (§ 1001.36, subd. (a)) grant pretrial diversion if a defendant meets all six

enumerate d requirements: (1) the court is satisfied that the
defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM); (2) the court is satisfied the ‘ defendant ’ s mental
disor der was a significant factor in the commission of the charged
offense ’ ; (3) a qualified mental health expert opines ‘ the
defendant ’ s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment ’ ; (4)
the defenda nt ‘ consents to diversion and waives [his or her] right to a speedy trial ’ ; (5) the defendant ‘ agrees to comply with
treatment as a condition of diversion ’ ; and (6) the court is
satisfied ‘ the defendant will not pose an unreasonable risk of danger to publi c safety .

. . if treated in the community. ’ (§ 1001.36, subd. (b)(1)(A)

- (F).) Even if a defendant otherwise8

satisfies the six eligibility requirements, the court must also be
satisfied that the recommended mental health treatment

program ‘ will meet the specialized mental health treatment
needs of the defendant. ’ (§ 1001.36, subd. (c)(1)(A); People v.
Frahs (2020) 9 Cal.5th 618, 627.) ” ( Gerson

, supra , 74 Cal.App.5th at p. 572.) In an appeal from an order denying a request for mental health diversion, “ ‘ we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably
deduce from t he evidence. ’ [Citation.] ” ( Gerson

, supra , 74 Cal.App.5th at p. 57 3 .) Th e trial court’s decision cannot be rejected unless it amounts to an abuse of discretion. ( Ibid

. ) “We
therefore review for abuse of discretion the trial court’s decision whether to grant a request for mental health diversion. [Citation.] ‘ A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal
stand ard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence. ’ [Citation.]” ( I

bi d .) Even if the court’s reasoning is erroneous , its ruling will be upheld i f it is legally correct

. ( People v. Harden (2022 ) 76 Cal.App.5th 262, 264

- 265 .) The trial court did not abuse its discretion in denying appellant’s request for mental h ealth diversion. Appellant failed

to present “the opinion of a qualified mental health expert ” that appellant’s “symptoms of the mental health disorder motivating the criminal behavior would respond to mental health

tre atment.” ( § 1001.36, subd. (b)(1)(C) .) Such an opinion is a “threshold” requirement for eligibility for diversion. ( People v.
F rahs

, supra , 9 Cal.5th at p. 640 .)9 “ A qualified mental health expert is someone, like a psychiatrist or psychologist, who is trained and experienced in diagnosing and treating mental health conditions. ” ( People v.
Hines (2020) 58 Cal.App.5th 583, 608 [addressing qualifications of expert to opine a defendant is incompetent to stand trial pursuant to § 1368].) Here, appellant merely offered a “client plan” prepared in March 2018 by Ri cardo Juarez, his “case manager” at Ve ntura County Behavioral Health. Although the plan outlines appellant’s treatment goals and objectives relating

to his ongoing mental health treatment at that time

, it does not include any expert opinions, much less any inf ormation establishing Juarez’s expertise to offer such opinions. Because appellant did not offer the expert opinion requir ed under subdivision (b)(1)(C) of section 1001.36, his request for mental health diversion pursuant to that s tatute was properly deni ed.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN , J.

We concur:

GILBERT

, P. J. YEGAN , J.Anthony J

. Sabo

, Judge Bruce A. Young, Judge Superior Court County of Ventura

______________________________

Nancy Wech s ler , under appointment by the Court of Appeal, for Defendant and Appellan t. Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews

, Supervising Deputy Attorney General, and Gary A. Lieber man , Deputy Attorney General, for Plaintiff and Res pondent.