Error and/or relief
We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding the defendant unsuitable for diversion.
(Gary note: I have set out the various holdings and authorities below that represent the applicable law and principles, but I have not recited the court’s analysis of the facts in this case on which it based there was no substantial evidence to support the court’s conclusion that the defendant was a danger to the community. Suffice it to say, the appellate court found the court’s reasoning inadequate to support denial of the request for mental health diversion.)
First Holding:
Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. The stated purpose of the diversion statute is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.
If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. However, if after diversion is granted, a qualified mental health expert concludes the defendant is performing unsatisfactorily in the assigned program, the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified.
Authority:
PEN 1001.36
PEN 1001.35
People v. Williams (2021) 63 Cal.App.5th 990, 995
People v. Frahs (2020) 9 Cal.5th 618, 626
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150
Second Holding:
Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program. A defendant is eligible if they meet two criteria: first, the defendant must have been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, within the last five years, by a qualified mental health expert.
Second, the disorder must be a significant factor in the commission of the charged offense. The court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
Authority:
PEN 1001.36(b)
Third Holding:
This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses.
Authority:
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404
Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688–689
Fourth Holding:
If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the diagnosis eligibility requirement, the first of these relies on input from a medical professional, in this instance the opinion of a qualified mental health expert, that the symptoms of defendant’s mental disorder would respond to mental health treatment.
The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding, to wit, that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.
Authority:
PEN 1001.36(c)
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–894
Fifth Holding:
Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18(c) and 667(e)(2)(C)(iv), an unreasonable risk to public safety means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.
The listed felonies are colloquially known as “super strikes.” Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. We note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense.
Authority:
PEN 1001.36(c)(4)
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892
People v. Williams (2021) 63 Cal.App.5th 990, 1001
People v. Moine (2011) 62 Cal.App.5th 440, 450
People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310
Sixth Holding:
Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendant will receive appropriate treatment for their particular conditions as part of the diversion program.
Authority:
PEN 1001.36(f)(1)(A)(i)
People v. Gerson (2022) 80 Cal.App.5th 1067, 1079
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892
Seventh Holding:
Finally, even if a defendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered; it must be exercised consistent with the principles and purpose of the governing law. Where the court chooses to exercise that residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet these goals.
Authority:
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892
Eighth Holding:
We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. Under this deferential standard of review, 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 the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.
Authority:
People v. Gerson (2022) 80 Cal.App.5th 1067, 1079
Ninth Holding:
We review the trial court’s ultimate decision whether to grant mental health diversion for an abuse of discretion. By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence.
Authority:
People v. Gerson (2022) 80 Cal.App.5th 1067, 1080