Error and/or relief
The trial court abused its discretion in denying mental health diversion. There was insufficient evidence to support the court’s determination that she was at risk of committing a super strike offense if treated in the community.
First Holding:
To qualify for pretrial diversion, criminal defendants must show they are both eligible and suitable for the program. A defendant is eligible for diversion if he or she has been diagnosed with a mental disorder that was a significant factor in the commission of the charged offense.
Generally, a defendant is suitable for diversion if the defendant’s symptoms would respond to mental health treatment, the defendant consents to diversion and waives the right to a speedy trial, the defendant agrees to comply with treatment as a condition of diversion, and the “defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.
Authority:
PEN 1001.36(a), (b)
People v. Bunas (2022) 79 Cal.App. 5th 840, 859-860
Second Holding:
Under section 1170.18(c), an unreasonable risk of danger to public safety means an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those violent felonies, commonly referred to as “super strikes,” include murder and attempted murder.
(Gary note: effective 1/1/2027, the language of 1001.36 changes–it drops the reference to section 1170.18, and instead states, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.” That’s a much lower bar for the court to justify a finding that the person poses disqualifying risk.)
Authority:
PEN 1170.18
PEN 667(e)(2)(C)(iv)
People v. Graham (2024) 102 Cal.App. 5th 787, 799
Third Holding:
We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. 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, 448-449
People v. Cluff (2001) 87 Cal.App. 4th 991, 998 [A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence]
Fourth Holding:
We conclude the evidence is insufficient to support the trial court’s finding that defendant poses an unreasonable risk of committing a super strike if treated in the community. The court relied on the underlying charges and defendant’s limited criminal past to find defendant posed an unreasonable public safety risk. Defendant has no history of arrests or convictions for a super strike offense, and the underlying charges were not super strikes.
Authority:
People v. Whitmill (2022) 86 Cal.App. 5th 1138, 1151
Gomez v. Superior Court (2025) 113 Cal.App. 5th 671, 690 [violent conduct alone is insufficient alone to support a finding defendant was likely to commit a super strike offense]
Fifth Holding:
Section 1001.36 provides the trial court with discretion to deny diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. But residual discretion must be exercised consistent with the principles and purpose of the governing law.
Authority:
People v. Cabalar (2025) 117 Cal.App. 5th 41, 53
Sarmiento v. Superior Court (2024) 98 Cal.App. 5th 882, 892
Wade v. Superior Court (2019) 33 Cal.App. 5th 694, 710
Sixth Holding:
Here, although the trial court mentioned its residual discretion, its ultimate finding that defendant’s treatment plan was insufficient to address defendant’s mental health disorders did not reflect consideration of the underlying purposes of the statute nor did it explain why diversion would not meet those goals.
As such, we cannot conclude the court properly exercised its residual discretion.
Authority:
Sarmiento v. Superior Court (2024) 98 Cal.App. 5th 882, 893
Vaughn v. Superior Court (2024) 105 Cal.App. 5th 124, 139