Error and/or relief
The court erred in denying the defendant’s request for mental health diversion because the court failed to explain its reasons for denying the motion and, in doing so, may have applied the law incorrectly.
First Holding:
Mental health diversion allows the trial court to suspend criminal proceedings and potentially dismiss the charges if the defendant successfully completes mental health treatment. To grant diversion, the trial court must find that the defendant is both eligible for diversion and suitable for a mental health program.
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. The trial 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:
People v. Flareau (2026) 118 Cal.App.5th 681, 689
Second Holding:
A defendant is suitable for diversion 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.
Authority:
People v. Flareau (2026) 118 Cal.App.5th 681, 689
Third Holding:
But even if the trial court finds that a defendant is eligible and suitable for diversion, the court retains discretion to deny diversion. This has been deemed residual discretion.
Authority:
People v. Flareau (2026) 118 Cal.App.5th 681, 689
Fourth Holding:
When a trial court considers public safety concerns in its suitability analysis, it is limited to assessing whether the defendant is likely to commit a “super strike” offense if released on mental health diversion. The trial court did not consider that likelihood.
(Gary note: section 1001.36 was amended by AB 46, signed into law June 29, 2026, effective January 1, 2027. Among other changes, the “unreasonable risk of danger to public safety” will no longer use the standard set forth as “super strikes” in section 1170.18.
(Until January 1, 2027, the relevant portion of section 1001.36(c)(4) reads, in part, “The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.”
(But as of January 1, 2027, that aspect of the new section (1001.36(c)(1)(D)) reads, in part, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.”
(If you have a client who seems ripe for mental health diversion, I suggest you hasten while the disqualifying factor remains at its high bar. Section 1170.18 defines specifically what a judge must consider the defendant is likely to do–commit a super strike as defined. Once AB 46 goes into effect, the standard gives far less precision on what constitutes undue risk to the physical safety of another person.)
Authority:
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896
Fifth Holding:
The trial court’s comments about a lack of accountability and oversight if defendant were granted mental health diversion reflects a misunderstanding of the mental health diversion process. A person granted mental health diversion will be undergoing inpatient or outpatient treatment, and the statute requires the provider of the mental health treatment program in which the defendant is placed to provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment
In addition, if the person is performing unsatisfactorily in the assigned program, or is charged with an additional offense or is engaging in criminal conduct during diversion, the court must hold a hearing to determine whether to, inter alia, modify treatment or reinstate criminal proceedings.
Authority:
People v. Calabar (2025) 117 Cal.App.5th 41, 58
Sixth Holding:
We must reverse unless the record clearly indicates that the trial court still would have denied defendant’s motion for mental health diversion even if the court had applied the law correctly.
Authority:
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892
Seventh Holding:
When, as here, we conditionally vacate a defendant’s plea agreement and remand for further mental health diversion proceedings, we necessarily must conditionally reverse the defendant’s sentence. Our reversal of the defendant’s sentence thus moots his other challenges to his sentence.
Authority:
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892
People v. Moine (2021) 62 Cal.App.5th 440, 452
People v. Frahs (2020) 9 Cal.5th 618, 640-641
People v. Rojas (2015) 237 Cal.App.4th 1298, 1301-1302 [appellant’s argument that trial court made sentencing errors held moot given remand for resentencing]