An excerpt from the long opinion Thursday in People v. White, decided by California Court of Appeal Justice David Rubin, joined by Justices Terry O’Rourke and Martin Buchanan:
On January 9, 2021—three days after the riot at the U.S. capitol—defendant Jeremy Jonathan White and several fellow Antifa movement activists traveled from Los Angeles to San Diego to meet local Antifa activists to counterprotest a planned right-wing “Patriot March.” Donning full tactical armor and armed with bear spray and a taser, White led Antifa marchers up and down the Pacific Beach boardwalk as many of the Antifa protesters violently confronted right-wing marchers. The scene devolved into a riot and police ultimately declared the Antifa protesters an unlawful assembly.
Over a year later, a San Diego grand jury issued a 29-count indictment alleging that 11 defendants conspired to riot on behalf of Antifa to disrupt the January 9, 2021 political demonstration…. All but two defendants entered plea bargains, and the case proceeded to a joint trial against only White and codefendant Brian Lightfoot. White was [convicted of] conspiracy to riot … [and] sentenced White to two years….
In early January 2021, a 17-year-old supporter of outgoing President Trump posted flyers online advertising a “Patriot March” near the Crystal Pier in Pacific Beach at 2:00 p.m. on January 9, 2021. Antifa activists planned a countermarch for the same day and location.
The evening before the scheduled event, White, Lightfoot, and others communicated through the encrypted “Signal” smartphone messaging app about plans to “squad up” and disrupt the “Patriot March.” White, whose Signal username was “ACAB Man” and whose Instagram username was “@theantifasoldier,” was one of three administrators for this messaging thread, which they named “SD Fash Bash.” Signal was “really the only way [White] like[d] to talk about actions” because “it’s … encrypted” and “keeps conversation[s] secure.” There were no direct communications between White and his coconspirators in this thread.
The group also promoted the Antifa counter action through its Twitter account, “SDAgainstFash.” The evening before the event, this account posted that the “main group intends to meet [at specified GPS coordinates] between 12 and 12:30” and “then move to the pier at 12:30” to arrive before the march participants. The Twitter account also posted, “Bloc is recommended, but soft if you’re more comfortable in it.” Detective Clark explained that “soft bloc” is “another type of clothing where maybe you blend into the general public as opposed to standing out by wearing all black.” The account advised that further coordination would occur via Signal. In a Signal discussion about what time the “Patriot March” participants were expected to arrive for their event, White wrote, “I think we’re just trying to get there super early to hold space and not let them gather easily.”
White and Lightfoot, who both lived in Los Angeles, got a ride to the San Diego meeting point from White’s friend, Robert S. During the drive, Lightfoot made video calls to another Antifa activist from Los Angeles (coconspirator Luis Mora) and coordinated their arrival in San Diego. Lightfoot also messaged through social media, “Got team coming from L.A.”
White arrived in San Diego “kitted up” in black bloc: black clothing, full body armor, a tactical helmet, a tactical vest, a gas mask, and medic patches on his chest and shoulders. White was armed with bear spray, a flashlight-taser, a knife, and scissors. He had three walkie-talkies and gave one to Lightfoot and Robert. White also had a first aid kit and tourniquet.
White’s trio walked from their parking lot to the pier with the other group of Antifa activists from Los Angeles. When combined with activists from San Diego, there were initially about 40 to 50 Antifa activists “dressed in all black.” The crowd grew to “a couple hundred people.” At times, White led the Antifa group on a march up and down the boardwalk waving an Antifa flag as the group chanted “kill all Nazis” and other slogans….
White argued on appeal that he was entitled to mental health diversion, but the appellate court upheld the trial court’s contrary conclusion:
Initially enacted in 2018, [Cal. Penal Code] section 1001.36 “authorizes a pretrial diversion program for defendants with qualifying mental disorders.” “Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment.” …
A defendant is suitable for pretrial diversion if four criteria are met: “(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder … would respond to mental health treatment. [¶] (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial …. [¶] (3) The defendant agrees to comply with treatment as a condition of diversion …. [¶] [and] (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.” …
[White’s expert, Dr. Williams,] documented that White reported that his father was physically “abusive throughout his childhood,” twice requiring White to seek medical treatment. White’s “mother was also physically abusive” and imposed “extreme” punishments. In 2016, White and a girlfriend “moved into an RV with the goal of traveling around and doing activism.” But the girlfriend physically abused White and defamed him online when he finally left her. White reported that he attempted suicide twice and “was in psychotherapy in high school” and “sporadic[ally] … since then.” White stated that “for the past seven years, he has devoted himself to political activism, placing it above his regular employment in importance.”
Dr. Williams opined that White’s PTSD arose from an incident in 2019 in which Torrance police officers severely beat White, breaking his back with a baton. The beating occurred when the mayor ordered police to remove people from a public meeting and White intervened as police were about to hit a woman. “That beating led to PTSD flashbacks and a physical tic.” In 2020, “White travelled around the country joining [George Floyd] protests,” during which he saw people “lose eyes,” “get limb injuries,” and “los[e] a finger.” Based on sustaining a broken back and witnessing these other injuries, White “decided to create his ‘suit of armor’ to protect himself.” The report noted that at other protests police beat White and shot him with a beanbag gun as he shielded protesters behind him. During his most recent arrest, “about 30 police came to his home to arrest him” around 4:30 a.m. Dr. Williams concluded that these “circumstances would lead to symptoms of PTSD.” …
“In [his] professional opinion,” Dr. Williams concluded that White’s wearing a “‘suit of armor,'” “carrying bear spray,” and his “role of protecting others as a medic” during protests “was a manifestation of [his] PTSD” and constituted “re-experiencing trauma, even before any violence occurred.” …
The [trial] court explained why it found “clear and convincing evidence that [PTSD] was not a motivating factor” in White’s commission of the charged offenses and why White’s conduct was not within the scope of the mental health diversion statutes:
This is sociopolitical behavior, and at least for this motion, that was the motivating factor along with a certain degree of anger. And that anger is replicated in the … social media messages and the defendant’s behavior just prior to the event and just after the event and including the event.
He engages in what can only be described as violent behavior, and that is the antithesis, I believe, and I think [Dr. Shaw] correctly points out … that that is not the behavior one would engage in when he or she has [PTSD]. It’s also not—to me, it’s clearly not within the legislative intent of the mental health care diversion statute….
So the defendant is not a good candidate nor would it be appropriate to divert him because of this.
The issue of the defendant’s body armor and wearing – and flags, the armor is meant for combat, and he’s been to so many protests that, to me, it became a learned behavior. And by wearing that armor, one, he won’t get hurt, and two, he conceals his identity which is gonna be an issue during the trial.
So that motion is denied….
[S]ubstantial evidence supports [this] finding …. White’s motion presented “a proverbial battle of the experts.” Dr. Williams opined that White’s PTSD contributed to his commission of the charged offenses, while Dr. Shaw opined that it did not. The trial court credited Dr. Shaw’s opinion over Dr. Williams’s….
As recounted in detail above [see the full opinion for that], Dr. Shaw identified several grounds for rejecting Dr. Williams’s opinion regarding White’s PTSD diagnosis being a contributing factor, including: the limited nature of the evaluation and materials consulted; the use of a lay description of PTSD that identified only a subset of diagnostic criteria listed in the DSM-5; the examination of only a single diagnostic criterion (flashbacks) and corresponding failure to address the highly relevant avoidance factor; and the failure to address White’s specific conduct during the charged offenses. These concerns gave the trial court valid, non-arbitrary reasons to reject Dr. Williams’s causation opinion.
Dr. Shaw also identified evidence in the record that supported her affirmative opinion that PTSD was not a contributing factor to White’s commission of the charged offenses, but rather, that he was motivated by his “sociopolitical ideology.” This evidence included: video evidence showing him behaving aggressively even before the Torrance incident that allegedly caused his PTSD; undisputed evidence that White “travelled around the country joining protests” rather than “avoid[ing] stimuli associated with his past trauma”; video evidence of the charged offenses showing that White did not exhibit behaviors one would expect from a person with PTSD, but rather, showed him seeking out violence; and social media posts glorifying past violence and suggesting he intended to engage in future violence. This evidence was sufficient to support the trial court’s finding that PTSD was not a contributing factor to White’s commission of the charged offenses.
The record also supports the trial court’s implied finding that White’s persistent depressive disorder was not a contributing factor. Dr. Shaw opined that White’s practice of participating in political protests was inconsistent with the behavior typically exhibited by those suffering from severe depressive symptoms. Notably, Dr. Williams did not offer any opinion on this point….
And the court upheld White’s conviction:
First, there was substantial evidence of an agreement between White and his coconspirators to riot. White and several coconspirators were members of an encrypted messaging thread titled “SD Fash Bash.” The word “[b]ash” in this title carries a violent connotation. Members of the chat talked about taking “action” and made plans to “squad up.” White’s Instagram handle—”@theantifasoldier” rather than, for example, “@theantifamedic“—also suggests he intended to engage in violence rather than render medical aid. Additionally, in a different message thread, White wrote that he was “trying to get there super early to hold space and not let them gather early.” The group also chatted about using black bloc, which consists of both anonymizing attire and disruptive and aggressive tactics that include “violent confrontation to get [adversaries] to leave.”
White’s and others’ appearances upon their arrival in Pacific Beach further support a finding they intended to riot. Six-foot-three-inch White appeared in head-to-toe tactical armor and was armed with bear spray, a knife, scissors, and a taser. Lightfoot and others were also armed. White and Lightfoot also had walkie-talkies.
The swiftness with which violence ensued after White’s arrival further supports a finding his group intended to riot. Within minutes of arriving, White stood feet behind Lightfoot during Incident 1 as Lightfoot bear sprayed juveniles who posed no threat. White then treated Lightfoot’s eyes for bear spray “blowback,” but there is no evidence that White treated anyone else that day. Ryan also testified that White—who “was one of the main instigators”—directed the Antifa crowd to attack Ryan during Incident 5 and that White himself pepper sprayed Ryan at the end of this attack. White’s involvement in Incident 5 along with other Antifa members supports the existence of a conspiracy to riot.
There was also abundant evidence that White or another coconspirator took an overt act to accomplish the goal of the conspiracy. White and others traveled to San Diego with tactical attire and weapons; White bear sprayed a man and his dog during Incident 2; White threatened to cover a photographer in bear spray during Incident 3; White directed the Antifa crowd to Ryan and then chased and bear sprayed Ryan during Incident 5; and White bear sprayed an unarmed bicyclist during Incident 8. Although White’s actions alone satisfy the overt act element, any of his coconspirators’ many overt acts would also satisfy this requirement.
Finally, White’s and his coconspirators’ subsequent celebrations of their violence suggest that they intended to engage in that conduct all along. For example, White wrote of the attack on Ryan, “Yeah we f[***]ed his s[***] up.” White also wrote of perceived white supremacists, “We’ve been handing them their own a[**]es for months. They’re starting to not come out as much anymore.” The jury could infer from these messages that White fulfilled his intent to work with others to use violence or threats of violence to disturb the public peace.
Eric A. Swenson and Junichi P. Semitsu represent the prosecution.
