But there's more. If the defendant is tried, convicted and sentenced in certain ways on more than three of the crime counts, he could become subject to possible federal deportation to a country where he hasn't been since he was six years old.

However at this point, it's not clear if the defendant will be tried, much less convicted or sentenced, in a deportable-triggering manner. That's due to a June 2018 Sacramento change in CA law that has significant consequences beyond this case for prosecutors in multiple cases. State lawmakers removed prosecutors' previous prerogative to decide, and restored judges' discretion to decide, if/when certain defendants deserve to be diverted out of criminal proceedings and into mental health treatment.

In June 2018, a provision tucked into a Sacramento budget bill, AB 1810, included very broad terms that the defense is now asking the trial court judge to apply by diverting the defendant out of the criminal proceeding and into mental health treatment. The defense's motion is based on findings by a defense-retained mental health professional.

When the City Prosecutor's office responded by seeking court permission to have the defendant undergo an examination by a prosecution-retained mental health professional, the court denied the prosecution's motion...but did allow the prosecution to review and comment on detailed materials that the defense-retained professional had compiled and prepared.

The case is ongoing and now set for a January 2019 court hearing for arguments from both sides.

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On October 18, defense lawyer Ashley Brillault submitted written papers to the court stating that the defendant was recently evaluated by a licensed psychologist who diagnosed the defendant with "Impulse Control Disorder, Major Depressive Disorder, Anxiety Disorder and possible Attention-Deficit/Hyperactivity Disorder (ADHD). In its papers, the defense argued that these mental disorders "and the traumatic life events defendant experienced that lead [sic] to the development these disorders played a significant role in the charged offense against the defendant."

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The defense papers continued:

Defendant would not pose an unreasonable risk of danger to public safety. Aside from the case at bar, defendant does not have any criminal history and has never been arrested or accused of engaging in any type of violent or threatening behavior...Defendant deeply regrets his actions and is well aware of the incredibly serious consequences he is potentially facing as a result of his actions. As such, defendant understands the absolute necessity in refraining for any actions that could pose an unreasonable risk of danger to public safety.

And the defense argued that granting mental health diversion would serve the interests of justice.

...If mental health diversion is denied, even though defendant is eligible, defendant will likely face a conviction in the case, substantial jail time, and deportation from the United States. It would be unfair and unjust to cause defendant to serve a life sentence of banishment from the United States, the only country defendant has known as his home since he was six years old, for one incident that was caused by mental health disorders which can be treated.

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To what extent are the Trump administration's deportation policies responsible for all of this? A close reading of the defendant's court-filed papers indicates the defendant would face potential deportation under the Obama administration's "Deferred Action for Childhood Arrivals" (DACA) policies unless the defendant's convictions and sentences are structured in a certain way. In August, a lawyer for the defendant filed an immigration brief on the consequences if the defendant were to enter a guilty plea to the charges alleged, stating in pertinent part:

[Defense papers' text]...[A]ll of the [alleged] offenses occurred on the same day and arose out of the same incident and act. [The Defendant] could, therefore, plead to multiple counts of the complaint without jeopardizing his DACA status. Although [he] would be convicted of committing several misdemeanors, the convictions occurred and would only count as one misdemeanor. The discussion with respect to what constitutes a "shall deport" order, therefore, depends on the issue of sentencing.

...The time in custody imposed by the court cannot be more than 90 days for each case. Thus, [the defendant] could be convicted of all counts of the complaint with it constituting only one conviction for DACA purposes. Unless, however, [the defendant] receives a sentence of 90 days or less, he will not be eligible to renew his DACA status and "shall be" deported from the United States; the only country he has ever known.

In September, the LB City Prosecutor's office responded by filing its own immigration brief, stating in pertinent part:

In every case, the People, in the interest of justice, consider the avoidable of adverse immigration consequences in plea negotiations as one factor in an effort to reach a just resolution, pursuant to Cal. Pen Code 1016.3(b). However, the People must also act in the interest of justice, and justice requires consideration of other factors, including but not limited to, deterrence, recidivism, and protection of the public, including the victims. In this case, the Defendant took advantage of his colleagues in a vulnerable state. He had obviously planned his crime out because he had to bring the camera to work and then set it up in a fashion that would capture the videos he desired. The People are of the position that what happens in the bathroom is private and that every person that uses a public restroom should feel safe and not fear that they will be recorded.

The People do not believe that a plea to three counts for 89 days county jail each is in the interest of justice as it does not serve as a deterrent, protect against recidivism, or ensure the safety of the public.

And what's the status of the Obama administration's DACA program after the Trump administration tried to rescind it in 2017? Several federal courts blocked immediate rescission DACA and on Nov. 8, 2018, a three-judge panel of 9th Circuit Court of Appeals (in a 99 page opinion) affirmed a northern CA federal judge's preliminary injunction effectively blocking the Trump-administration from immediately ending DACA.

Meanwhile, for the past two years, Congress (in which Republicans have held majorities in both the House and Senate) has failed to enact statutory protections for DACA recipients that could trump what President Trump or other presidents might say on the matter. And as a result of November 2018 elections, Democrats will have a House majority in January 2019.

At a November 16 court hearing, Superior Court judge Lori Behar (appointed by Gov. Jerry Brown in 2012, re-elected in 2014) denied the LB City Prosecutor's office motion to have a prosecution-retained mental health professional examine the defendant, instead allowing the City Prosecutor's office access to the detailed materials compiled by the defense-retained mental health professional. The court also agreed to continue (delay) further proceedings in the case into January 2019.

So if you were the judge, how would you rule, and why, if this came before you?

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