Error and/or relief
There was insufficient evidence to support the trial court’s finding that placing the defendant on mental health diversion would present an unreasonable risk of danger to public safety. The denial of the request for diversion under section 1001.36 is reversed and remanded for further proceedings.
First Holding:
Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The statute defines pretrial diversion as the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.
The maximum period of diversion is two years. If the defendant performs satisfactorily in diversion, then at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion, and the arrest upon which the diversion was based shall be deemed never to have occurred.
Authority:
PEN 1001.36
People v. Frahs (2020) 9 Cal.5th 618, 626
Second Holding:
Mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specified in the statute. Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.
They are suitable if:
(1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (
2) the defendant agrees to waive their speedy trial rights;
(3) the defendant agrees to comply with treatment requirements; and
(4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).
Only the public safety suitability requirement necessitates a trial court finding.
Authority:
PEN 1001.36(b) and (c)
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892
Third Holding:
As used throughout the Penal Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv), which numerates particularly serious or violent felonies, known colloquially as “super strikes.”
Super strikes include any homicide offense, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony punishable by life imprisonment or death.
Authority:
PEN 1172.18
People v. Valencia (2017) 3 Cal.5th 347, 351
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892, fn. 4
Fourth 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 defendants will receive appropriate treatment for their particular conditions as part of the diversion program.
Authority:
People v. Gerson (2022) 80 Cal.App.5th 1067, 1079
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892
Fifth Holding:
Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.
Authority:
People v. Gerson (2022) 80 Cal.App.5th 1067, 1079
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888, 891
Wade v. Superior Court (2019) 33 Cal.App.5th 694, 710
People v. Williams (2021) 63 Cal.App.5th 990, 1001 [scope of discretion always resides in the particular law being applied]
Sixth Holding:
A trial court’s ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence. A trial court has broad discretion to determine whether a given defendant is a good candidate for mental health diversion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.
Authority:
People v. Moine (2021) 62 Cal.App.5th 440, 449
People v. Oneal (2021) 64 Cal.App.5th 581, 588
People v. Curry (2021) 62 Cal.App.5th 314, 324
People v. Bunas (2022) 79 Cal.App.5th 840, 848–849
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147
Seventh Holding:
Section 1001.36(e) provides that the hearing on a defendant’s eligibility and suitability shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. In general, the court will find hearsay evidence trustworthy when there are sufficient indicia of reliability. The court, however, may not rely on unsubstantiated or unreliable evidence.
Authority:
People v. Buell (2017) 16 Cal.App.5th 682, 689 [hearsay that bears a substantial guarantee of trustworthiness is admissible in probation revocation proceedings]