Error and/or relief
The petitioner unsuccessfully moved for mental health diversion under Penal Code section 1001.36. In petitioning this court for a writ of mandate, the petitioner contends that the trial court erred in finding him ineligible on six counts and eligible but unsuitable on the seventh count. We agree. We therefore grant the petition and direct the trial court to vacate its order denying the motion for mental health diversion and hold a new hearing on the motion.
First Holding:
In 2018, the Legislature enacted section 1001.36 to create a program of pretrial diversion for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment.
The express purpose of this legislation was to increase diversion of such individuals based on concerns that incarceration only serves to aggravate their preexisting conditions and does little to deter future lawlessness. Successful mental health treatment, in contrast, both helps the individual and makes the community safer. More recent amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.
Authority:
PEN 1001.36
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890-891
Second Holding:
Effective January 1, 2023, 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 specific 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).
Authority:
PEN 1001.36
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891
Third Holding:
A defendant’s eligibility no longer turned on findings to the court’s satisfaction. Rather, defendants are generally eligible if they have been diagnosed with a recognized mental disorder. Beyond that, the amended statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime.
The court is directed to find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. In practical terms, following the 2022 amendments, defendants with a proper mental health diagnosis will seldom be ineligible for diversion. The more difficult question will be determining whether they are suitable.
Authority:
PEN 1001.36
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891
People v. Harlow (2025) 113 Cal.App.5th 485, 490
Fourth Holding:
We review for substantial evidence a court’s finding by clear and convincing evidence that a mental disorder was not a motivating factor, causal factor, or constributing factor. We consider whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.
Authority:
PEN 1001.36(b)(2)
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401
Fifth Holding:
Of the four factors set forth in the statute regarding suitability, only the fourth necessitates a trial court finding–that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. But that risk is severely limited by incorporation of sections 1170.18 and 667(e)(2)(C)(iv) as the definition of unreasonable risk of danger to public safety and the list of felonies conviction of which would preclude eligibility.
Authority:
PEN 1001.36
PEN 1170.18
PEN 667(e)(2)(C)(iv)
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892
Sixth 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.
That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. Where the court chooses to exercise this 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 those goals.
Authority:
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893
Seventh Holding:
To the extent the court’s finding of unsuitability could be based on any of the four eligibility factors, it is unsupported by substantial evidence.
Authority:
Flareau v. Superior Court of Riverside County (2026) 118 Cal.App.5th 681, 690 [when reviewing the trial court’s suitability finding, we must determine whether substantial evidence supports the trial court’s findings concerning the four suitability factors]
Eighth Holding:
The People argue that the trial court’s suitability finding was instead its use of its residual discretion. If that is the case, however, the trial court abused its discretion by failing to consider the underlying purposes of section 1001.36 or explain why diversion would not meet those goals.
Authority:
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893