Error and/or relief
The court erred in denying the defendant’s request for mental health diversion after considering only one of the two available medical reports before determining that the defendant presented an unreasonable risk of danger to public safety within the meaning of section 1170.18.
(Gary note: as I explain below in a note to the Third Holding, that standard is slated to change 1/1/27.)
First Holding:
Section 1001.36 gives trial courts discretion to grant pretrial diversion for defendants with qualifying mental health disorders. The court may postpone prosecution to allow the defendant to receive mental health treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.
Authority:
PEN 1001.36
People v. Frahs (2020) 9 Cal.5th 618, 626, 632
People v. Tourville (2026) 120 Cal.App.5th 439, 451
Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149
Second Holding:
Defendants requesting mental health diversion have the burden to make a prima facie showing that they will meet the minimum requirements of eligibility for diversion and that they and the offense are suitable for diversion.
A defendant is eligible under section 1001.36(b) if:
(1) a qualified mental health expert has diagnosed the defendant within the last five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (with limited exceptions); and
(2) the defendant’s mental disorder was a significant factor in the charged offense.
Authority:
PEN 1001.36(b)
Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891
Third Holding:
A defendant is suitable for diversion under section 1001.36(c) if the defendant satisfies four requirements:
(1) a qualified mental health expert concludes the defendant’s mental disorder would respond to treatment;
(2) the defendant consents to diversion and agrees to waive his or her speedy trial rights;
(3) the defendant agrees to comply with treatment; and
(4) if treated in the community, the defendant will not pose an “unreasonable risk of danger to public safety,” as defined in section 1170.18.
(Gary note: Effective 1/1/2027, the language in 1001.36(c)(4) regarding an unreasonable risk of danger to public safety (as defined in section 1170.18) changed to something much less favorable for seekers of diversion. AB 46 (enacted as Chapter 18) and AB 2273 (enacted as Chapter 298) amended section 1001.36 by changing and renumbering the “public safety” subdivision language to 1001.36(c)(D). Instead of incorporating the “superstrike” language of Penal Code section 1170.18, the language effective 1/1/27 will read “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community. …”)
Authority:
PEN 1001.36(c)
People v. Tourville (2026) 120 Cal.App.5th 439, 458
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892
Fourth Holding:
Even if the defendant makes a prima facie showing he or she meets the statutory requirements, the trial court has residual discretion to deny diversion. The court must exercise its residual discretion consistent with the principles and purpose of the mental health diversion statutes.
Authority:
People v. Cabalar (2025) 117 Cal.App.5th 41, 53
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892
Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135
Fifth Holding:
We review the trial court’s order granting or denying a request for mental health diversion for abuse of discretion. The court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.
Authority:
Vaughn v. Superior Court (2024) 105 Cal.App.5th 135
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147
(Gary note: The appellate court described confusion in the record as to whether the trial court had the second mental health report available or read it. The trial court denied the request for diversion on finding that the defendant posed an unreasonable danger to public safety as defined in section 1170.18. The appellate court remanded for the trial court to review that second report before making a determination on whether the defendant poses a reasonable risk of committing a so-called superstrike.
(As I noted above, however, that bar is lowered as of 1/1/27. Of course, the trial court should still consider the second report. The question I have and do not know the answer to is whether the defendant is entitled to the heightened standard as it existed at the time he made his request for diversion and as it stands as of the writing of this summary, or whether any delay in the new proceedings past 2026 will subject him to evaluation as a risk under the new lower bar. Was that a question? Hmmm. You get my drift, though, right?)