Family fights to keep mentally ill SLO County man out of jail — but they need help
Editor’s note: This story is a part of an ongoing series examining the mental health care crisis in San Luis Obispo County.
Lisa Kania is sitting on the front patio of her ranch-style Atascadero home beneath a large American flag and beside a replica of her local church when her phone rings.
She looks down at the caller ID.
“It’s the DA,” she says and picks up the call.
“I received your letter and I am not a victim,” Kania tells the person on the other end after listening for a moment. “So don’t make me my son’s victim, and I want that rescinded.”
Kania is referring to a letter notifying her of a restraining order against her 36-year-old son Joseph Perez, who is diagnosed with schizophrenia, after the District Attorney’s Office filed charges against Perez claiming he assaulted his mother in August 2021 when he was in the midst of a severe mental health crisis.
It’s a claim Kania vehemently denies. And it’s placed Perez in a precarious position, facing criminal prosecution for an incident his mother attributes entirely to his mental illness.
Instead of that path, Kania wants her son to be diverted into a treatment program that will provide him more suitable care than the San Luis Obispo County Jail.
Fortunately, California has just such an option: The Mental Health Diversion Court system, a pretrial program intended to route defendants with severe mental illness from the criminal court system into intensive treatment.
But it’s not easy to get into — and even more difficult to complete. If Perez is accepted into the program, it would make him part of a very lucky few.
In fact, a Tribune analysis of court records since the program’s inception in 2019 found that, as of April 25, only about 20% of petitions to join the program were accepted and, of those, fewer than 2% completed the program to the point they cleared their names and had their charges dismissed.
Kania told the Tribune she feels the mental health diversion program is the best option to help her son.
“We’re not asking for anything but a signature to allow us to help us help our child,” Kania said.
What happened the night of the incident
According to a police report of the August 2021 incident obtained by the Tribune, Perez threw a ceramic figurine at his mother, which broke on impact, and later threw a large rock in the direction of her and her husband while in the midst of a mental health crisis.
Kania told The Tribune the figurine was a fragile lladro piece that was already cracked. She said Perez tossed it in her lap because he was said it was broken. Collecting lladro figurines is a hobby shared between the two.
She also said the rock landed far away from her and her husband and they were not in any kind of danger.
Kania didn’t want to press charges that night, she told the Tribune.
According to the police report, she told the Atascadero Police Department officers at the scene the same. All she wanted was to get help for her son.
But by the end of the night, she faced an impossible choice: Watch her son deteriorate into psychosis without treatment or allow him to be arrested. Kania said she was told if police arrested him, he would get help.
So Perez was taken into custody that summer night and then spent the next six months in jail before he was deemed competent to stand trial.
The District Attorney’s Office continued to pursue the charges against the family’s wishes and until recently did not support Perez’s participation in a program that would treat his schizophrenia in place of jail time, Kania said.
Goal of mental health diversion program
As an alternative to jail, the diversion court program was adopted by the state in 2018 to help keep people with severe mental illness out of the criminal court system when they are accused of crimes that occur as a result of their unstable condition.
The pretrial program, which is managed by the county-run behavioral health and court systems, allows eligible participants to receive outpatient mental health care instead of sitting in a cell or taking up a bed at overcrowded state hospitals if they’re deemed incompetent to stand trial.
Through an attorney, the defendant waives their right to a speedy trial and asks to be enrolled in the program. A judge then determines whether the individual is eligible based on the criteria outlined by Senate Bill 215. If the defendant completes the program successfully, the judge has the authority to dismiss the charges.
“On the behavioral health side, we’re really trying to promote healing and wellness and provide an integrated treatment program for offenders who find themselves in a court of law but are suffering from a mental health disorder,” Behavioral Health Department spokeswoman Caroline Schmidt told The Tribune.
The Mental Health Diversion Court system is considered a long-term solution to provide mentally ill people that are charged with a crime with intensive therapeutic treatment in an outpatient setting, according to a statement from the California Department of State Hospitals.
People with severe mental illness who are charged with a crime, like Joseph Perez, may be deemed incompetent to stand trial, meaning they are unable to understand the charges against them or help with their own defense.
If an incompetency determination is reached, the defendant is supposed to be sent to a facility like Atascadero State Hospital for psychiatric treatment.
But the number of people deemed incompetent to stand trial far exceeds the number of available psychiatric hospital beds: More than 1,900 people were on the waitlist for a bed as of April 11, according to the Department of State Hospitals.
The growing waitlist is a key reason why the department incentivizes counties throughout California to embrace mental health diversion. The department allots $142,000 to the county for each eligible participant who is part of the program for at least 30 days and meets the requirements, according to the Department of State Hospitals.
Teresa Pemberton, division manager for the Mental Health Diversion Court, said the Department of State Hospitals has been working with the county to provide education on how to help stabilize people in crisis, as well as providing funding for three people deemed incompetent to stand trial to take part in mental health diversion each year.
“To date, 24 counties have activated diversion programs, and it is anticipated that 820 felony IST (incompetent to stand trial) individuals will be diverted,” the Department of State Hospitals said in an emailed statement.
The department proposed increasing funding to the county in 2021-22 to direct more people deemed incompetent to stand trial to mental health diversion, but, Pemberton said, they did not accept the funding.
“We did not do that at this time because we are still working with the three that we have,” Pemberton said. “We have not expanded it. It’s very complicated to get someone through the court system and so we are staying with our three.”
For Perez’s family, the time between now and his May 26 hearing is like being suspended in limbo. Lisa Kania said her son has been wracked with anxiety at the prospect of being denied mental health treatment and possibly returning to jail.
“He’s mentally drained. This needs to keep moving forward,” Kania said. “This is somebody’s life.”
How successful has diversion court been in SLO County?
Enrolling in the program is just the first step in a winding system in which the number of participants narrows at every stage.
When The Tribune requested data measuring the scope and impact of the Mental Health Diversion Court system from the District Attorney’s Office, Assistant District Attorney Eric Dobroth wrote in an email that their numbers would be “scattered and inaccurate.”
The San Luis Obispo Superior Court could only provide a list of cases where a probation screening for mental health diversion took place — a requirement to be considered for the program — and a list of cases where the defendant was accepted into the program. Some people had multiple cases going on simultaneously, and others had multiple probation screenings at different times.
The Tribune conducted a case-by-case analysis of more than 650 mental health probation screenings and found that 277 people requested mental health diversion at least once between the program’s inception in March 2019 and April 25 of this year.
Of those 277 people, 59 were accepted into the program. Of those, 30 people are currently participating, 24 have failed and had their cases moved to criminal proceedings, and five succeeded and had their charges dismissed.
That means in four years since the program launched in 2019, fewer than 2% of petitions for participation in Mental Health Diversion Court culminated in the charges being dismissed by the court system.
Schmidt, the Behavioral Health spokesperson, confirmed to the Tribune that 59 people have taken part in the program as of April 25, and added that 17 people have successfully completed the program.
But the definition of what success looks like isn’t uniform, because the court and Behavioral Health define it differently, Schmidt said.
Behavioral Health defines success as when a participant completes the mental health treatment program, but the court system doesn’t recognize program completion until after a six-month waiting period to ensure the person remains in good standing, Schmidt said.
Also, Behavioral Health doesn’t keep track of how many people have their charges dismissed after they finish the program, she said.
“Once they successfully complete the program, they can have the opportunity to basically expunge their record, I guess you could say, at the time of their completed treatment,” Schmidt said.
When asked about the Tribune’s findings, Dobroth said he wasn’t surprised at the low numbers.
He cited various reasons why someone may not be approved for mental health diversion and why the District Attorney’s Office may argue against it, such as the nature of the alleged crime, the perceived danger the individual may pose to the community or whether the individual is suitable for the program.
“It’s as I would expect generally, that there’s going to be a significant number that either don’t qualify in the first instance or are found unamenable (to the program),” Dobroth said.
In fact, when mental health diversion was first introduced in the California Assembly in June 2018, District Attorney Dan Dow authored a viewpoint in the Tribune calling the diversion program “well-intended” but said it resulted in “irresponsible and unconscionable” outcomes because it did not address exclusions for certain violent crimes.
California Senate Bill 215 was introduced a few months later, and it adjusted the parameters, making defendants accused of murder, voluntary manslaughter, rape and other sex crimes ineligible for diversion, along with defendants diagnosed with antisocial personality disorder, borderline personality disorder and pedophilia, according to the bill.
Criteria for the mental health diversion program is relatively narrow
When the program was first implemented, one of the primary concerns shared by the District Attorney’s Office and Behavioral Health was ensuring the safety of staff and participants, Dobroth said.
He noted that many times, people with severe mental illnesses can struggle in group settings or be more inclined to interrupt meetings than participants in other types of pretrial diversion programs.
These factors may make a particular individual less suitable to a pretrial diversion program that includes a lot of outpatient group therapy, according to Dobroth and Pemberton, the division manager for the Mental Health Diversion Court.
“Most of the services are done in a group setting so that we can serve the most number of people with the staff that we do have, and so some clients have to be stable enough to function in a group setting,” Pemberton said.
Clients that are too mentally ill to receive services in a group setting will have to work with their attorneys to find an alternative option, like individual outpatient therapy or inpatient hospitalization, Pemberton said.
It’s unclear whether any of these treatment pathways culminate in a dismissal of charges the way the state-established mental health diversion treatment program does.
“I’m not saying that when somebody is disruptive or violent, that they necessarily need to be prosecuted criminally as opposed to diversion. I want to make that absolutely clear,” Dobroth said. “What I’m saying is, in reality, if you have an individual who poses a significant risk to someone’s physical safety in a group setting, it’s going to be difficult to have that individual in that group setting.”
District Attorney’s Office seemed reluctant to help Perez — at first
In Joseph Perez’s case, the District Attorney’s Office indicated to Kania in a conversation at the end of March that it would be recommending his case move to criminal proceedings, instead of diverting him to treatment, Kania said.
Then, on April 26, a day after The Tribune had called the District Attorney’s Office to talk about Perez’s case, a victim witness with the District Attorney’s Office called Kania telling her the office wanted Joseph to get help.
“I was shocked at the tone of sudden understanding of mental health,” Kania said of the recent conversation. “(It’s) something I’ve been trying to get them to understand, and they shut me down all the time. They shut me down every phone call.”
Kania believes the diversion program offers the best opportunity for her son.
The program offers weekly check-ins with a county psychologist, psychiatrist and social worker as well as group therapy four times a week for two hours, according to a sample program created for Joseph that was shared with The Tribune.
Kania said the family has been asking county mental health for this level of support for Joseph for years.
“Finally, a support system that not only works for him but works for us, because it also gives us people to reach out to,” Kania said. “I cried with relief when I read the plan.”
Kania said she noticed a change in the DA‘s Office during her son’s hearing on April 28.
Instead of fighting against Joseph’s participation in the diversion program, the representatives seemed receptive. They even had softer facial expressions, she said.
During the hearing, the family hoped the court would enroll him into treatment, but instead, the court ordered Joseph to get another forensic mental health evaluation.
“It irritates me that he has to get yet another doctor to evaluate him, like the schizophrenia is going to go away,” Kania said.
Perez has been diagnosed with schizophrenia by several doctors, including one at the San Luis Obispo County Jail, Kania said. County Behavioral Health also had to evaluate Perez to determine if he would be a good fit for the diversion program.
“You’re setting somebody up for failure by doing this. I don’t see why he needs another forensic psychiatrist again,” she said. “How many more psychiatrists do you need to come to the same conclusion?”
She is concerned that the weeks between now and his new court date, set for May 26, presents more opportunity for Joseph to “decompensate,” or have his mental state deteriorate, under the stress — which means more strain for the family.
And there’s a chance a forensic psychologist won’t be scheduled in time — a major concern for Kania. The presiding judge, in this case Superior Court Judge Craig van Rooyen, has to sign the request before the psychologist is scheduled. The family and the psychologist’s schedule has to line up, and then the paperwork needs to be filed back into court.
After the forensic medical evaluation is completed and submitted, the court will file the forensic mental health evaluation and possibly divert his case, Judge Barry LaBarbera said at the April 28 hearing.
LaBarbera said the report is a necessary legal step but that it looks like Perez will be able to participate in the program.
That’s good news for Kania and her family. But it’s not a done deal yet.
“I’m going in there with optimistic hope with the reality of knowing how this DA’s Office works. They can flip on a dime,” Kania said. “My trust with the system isn’t there. Until that (program acceptance) is signed by a judge, I am still very guarded.”
Coming Sunday: A man was in a mental health hold. Police said his soft cast was a deadly weapon.
This story is a part of an ongoing series covering the mental health and behavioral health systems in San Luis Obispo County. If you wish to contact the Tribune with a news tip, please email cjones@thetribunenews.com and skassabian@thetribunenews.com.
This story was originally published May 6, 2022 at 5:00 AM.
