Author Archives: Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying the defendant’s motion for pretrial mental health diversion under Penal Code section 1001.36. The People concede that the court erred in finding the him ineligible for diversion. The judgment is conditionally reversed, the order denying the defendant’s motion for mental health diversion is vacated, and the matter is remanded for the trial court to reconsider his diversion motion consistent with this opinion. If the trial court again denies the motion, the judgment shall be reinstated.

First Holding:

A trial court may grant mental health diversion to defendants who satisfy the eligibility and suitability requirements set forth in the statute. A defendant is eligible for diversion if he or she has been diagnosed with a qualifying mental disorder and that disorder was a significant factor in the commission of the charged offense. 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 if treated in the community.

Authority:

PEN 1001.36

Second Holding:

We review a trial court’s denial of mental health diversion for abuse of discretion. 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. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is 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. In making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011

Third Holding:

Under the statute, a trial court must presume that a defendant’s diagnosed mental disorder was a significant factor in the commission of the crime, 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. The prosecution bears the burden of presenting such clear and convincing evidence. The absence of evidence proving that a defendant’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that a defendant’s mental disorder was not a factor in the commission of the offenses.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404