Mental Health Diversion Retroactivity Not Intended

On March 23, 2015, an officer at Salinas Valley State Prison was conducting a security check when defendant Harley Wayne Lipsett “threw liquid fecal matter through the crack of his cell door, striking the officer in the left arm, left leg, head, hat, and left boot.”  Additional officers responded and found that Lipsett’s cell smelled of urine and fecal matter.

Defendant “was standing in front of his door yelling, ‘I got him and I got Hep C!’”  Defendant had cut himself on his arm and was dripping blood.  When asked why he had thrown the fecal matter, defendant replied, “It doesn’t matter, I’m getting out of here anyway and there’s nothing you can fucking do!”

When arraigned on battery on a non-prisoner by a prisoner (Penal Code § 4501.5), with a sentencing enhancement of having suffered a prior strike, Defendant initially pled not guilty by reason of insanity and the parties agreed to appointment of two psychologists to examine him.  After being examined and after the psychologists stated he was not insane, defendant withdrew his not guilty by reason of insanity plea.

The probation report described how defendant was 37 years old and had an extensive criminal history, beginning at age 13.  His history included many assaults, vandalism and other crimes.

At sentencing, defendant addressed the judge, describing himself as suffering from mental illness for a long time.

The judge sentenced defendant to six more years in state prison, which was double the midterm for battery on a police officer.  The three years was doubled to six due to defendant’s prior strike.

Court of Appeal Sixth Appellate District San JoseThe appellate court then discussed the six requirements for one to be eligible under Penal Code § 1001.36.  It then narrowed down its focus and explained that the critical issue raised by defendant’s appeal was whether 1001.36 is retroactive.  It then quoted Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, which states, “It is well-settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.”  It also cited to section 3 of the California Penal Code, which states, “No part of the Penal Code is retroactive, unless expressly so declared.”