Error and/or relief
The court abused its discretion by denying diversion after finding that the defendant is NOT likely to commit a super strike offense.
We reverse the judgment and direct the court to vacate its order denying mental health diversion and enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion.
First Holding:
The defendant obtained a certificate of probable cause and appealed the denial of his motion for mental health diversion. Appeal lies from the judgment.
Authority:
PEN 1237.5 [appeal may be taken after a no contest plea if the court issues a certificate of probable cause]
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147
Second Holding:
We review the diversion denial order for abuse of discretion, meaning the decision is arbitrary or capricious, applied the wrong legal standard, or is unsupported by substantial evidence.
Authority:
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147
People v. Graham (2024) 102 Cal.App.5th 787, 795
Third Holding:
The diversion law promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. The potentially ameliorative benefit for criminal defendants who suffer from a qualifying mental disorder is balanced against protecting public safety. The law is intended to apply as broadly as possible.
Authority:
PEN 1001.35(a)
People v. Frahs (2020) 9 Cal.5th 618, 630-631
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149
Fourth Holding:
A defendant charged with a felony may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for up to two years. If the defendant performed satisfactorily in diversion, 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.
In other words, the arrest upon which the diversion was based shall be deemed never to have occurred. If the defendant performs unsatisfactorily in a treatment program or engages in criminal conduct, the court may reinstate criminal proceedings.
Authority:
PEN 1001.36(f)(1)(A)(ii) and (C)(i), (g), and (h)
People v. Frahs (2020) 9 Cal.5th 618, 631
Fifth Holding:
A defendant is eligible for diversion if a mental health expert diagnoses the defendant with a qualifying mental disorder that was a significant factor in commission of the charged offense. A defendant is suitable for diversion if
(1) the expert opines that the defendant would respond to treatment;
(2) the defendant consents to diversion and waives the right to a speedy trial;
(3) the defendant agrees to comply with treatment; and
(4) the defendant will not pose an unreasonable risk of danger to public safety.
Authority:
PEN 1001.36(b) and (c)
People v. Tourville (2026) 120 Cal.App.5th 439, 452
Sixth Holding:
The only disputed issue in this appeal is public safety. The Legislature defined “unreasonable risk of danger to public safety” by incorporating section 1170.18. Section 1170.18(c) defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony listed in section 667. The relevant violent felonies in section 667 are super strikes. Burglary–the charge the defendant faced–is not a super strike.
Courts limit discretion to deny diversion on “public safety” grounds to instances where a defendant is likely to commit a super strike.
Authority:
People v. Moine (2021) 62 Cal.App.5th 440, 449–450
People v. Williams (2021) 63 Cal.App.5th 990, 1001
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1151
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896
People v. Brown (2024) 101 Cal.App.5th 113, 121
People v. Graham (2024) 102 Cal.App.5th 787, 798–799
Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690–691
Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83, 87–88
People v. Tourville (2026) 120 Cal.App.5th 439, 454–455
Seventh Holding:
The Legislature is presumed to know about existing case law when it amends a statute. The Legislature amended section 1001.36 seven times between 2022 and 2026 without eliminating the reference to section 1170.18, despite the decisions cited above, which require a finding that the defendant poses a risk of committing super strikes.
Authority:
People v. Rhodius (2025) 17 Cal.5th 1050, 1062
People v. Mitchell (2026) 19 Cal.5th 729, 743
People v. Frahs (2020) 9 Cal.5th 618, 634
Eighth Holding:
Beginning in 2027, courts applying section 1001.36 will no longer use the old definition of “unreasonable risk of danger to public safety” from section 1170.18. Instead, they will apply a new standard: “substantial and undue risk to the physical safety of another person.” Regardless of the forthcoming changes to section 1001.36, the version of the law applying to this defendant required a super strike finding.
The trial court found he did not pose a risk of committing super strikes, only that he poses an unreasonable risk of committing further residential burglaries. The court could not deny diversion based on a risk the defendfant will commit burglaries, thereby discounting the need to find public safety is imperiled by likely super strike offenses. The Legislature has specifically defined what constitutes ‘an unreasonable risk of danger to public safety’ under the statute, limiting it to the danger the defendant will commit a super strike.
Authority:
People v. Tourville (2026) 120 Cal.App.5th 439, 455
Ninth Holding:
Courts recognize “residual discretion” to deny diversion. However, while it is clear a trial court retains residual discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of public safety inconsistent with the specific statutory definition in section 1001.36(c)(4). In the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.
Authority:
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896
Tenth Holding:
Reasons the court might exercise discretion to deny diversion include lack of a treatment program; a defendant’s history of failed treatment or misconduct in prior programs; or the availability of a better program for the defendant’s needs.
Authority:
People v. Tourville (2026) 120 Cal.App.5th 439, 457
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 889–890