Tag Archives: Diversion

Case 000999

Error and/or relief

The court abused its discretion by denying the defendant’s request for mental health diversion because its finding that he is ineligible for diversion is not supported by substantial evidence.

First Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals entry and reentry into the criminal justice system while protecting public safety.

Under section 1001.36(b), the court must 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. Eligibility no longer turned on findings to the court’s satisfaction.

The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise. And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.

Authority:

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

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before us is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the dispute] fact was true.

More specifically, in this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. To answer that question, we review the record in the light most favorable to the prevailing party 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.

(Gary note: The balance of the decision discusses the conclusions drawn by the trial court that it relied on to conclude that the mental disorder did not contribute to the offense. The appellate court concluded that the inferences the trial court drew were not substantial evidence to overcome by clear and convincing the presumption that the mental disorder was a contributing factor, and reversed the denial. It remanded for the court to reconsider the defendant’s application for mental health diversion consistent with the appellate court’s opinion.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

Case 000981

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

Case 000968

Error and/or relief

In denying the petition, the trial court stated the law compelled it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community because of the seriousness of the charged offenses.

The trial court abused its discretion in failing to apply the correct legal standard. Accordingly, we conditionally reverse the judgment, reverse the order denying the defendant’s petition, and remand the case for the trial court to reconsider the defendant’s petition.

First Holding:

To qualify for mental health diversion, a defendant must meet eligibility and suitability criteria. If a defendant is both eligible and suitable, the court may, in its discretion grant diversion. Thus, a diversion order is expressly discretionary with the court, even when all of the criteria are met.

Authority:

PEN 1001.36(a)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Doron (2023) 95 Cal.App.5th 1, 9

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Second Holding:

A defendant is eligible for diversion if he suffers from a qualifying mental disorder that was a significant factor in the commission of the charged offense.

A defendant is suitable for diversion if (1) a qualified mental health expert opines the defendant’s symptoms will 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 if treated in the community.

As to the last suitability requirement, a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk he will commit a violent felony known as a super strike.

Authority:

PEN 1001.36

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

Third Holding:

Nothing precludes a trial court from relying primarily, or even entirely, on the circumstances of the charged offense or offenses in denying a motion for diversion. However, no matter how serious the charged offenses, the court retains discretion to find the defendant does not pose an unreasonable danger.

Authority:

People v. Bunas (2022) 79 Cal.App.5th 840, 862

People v. Graham (2024) 102 Cal.App.5th 787, 799 [the court acted within its discretion in determining that the nature and manner of defendant’s charged crimes—and particularly, the two super strikes—rendered her likely to commit another super strike; section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness.]

Fourth Holding:

It appears here that the court applied the wrong standard in assessing the risk of danger to public safety. The court stated it was “here to consider the seriousness of the charges,” and “based on the seriousness of the charges,” the law “compels” it to find the defendant poses an unreasonable risk of danger to public safety if treated in the community.

These comments suggest the court erroneously believed, because of the seriousness of the charges, it lacked discretion to find in the defendant’s favor on the dangerousness issue.

Given that the court did not discuss the circumstances of the offenses or identify any other factors it considered in reaching its decision, we are not sufficiently confident that it understood it had discretion.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [a court abuses its discretion when it applies the wrong legal standard]

Fifth Holding:

A court unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose decision is or may have been based on misinformation regarding a material aspect of a defendant’s record.

Under these circumstances, the proper remedy is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Doron (2023) 95 Cal.App.5th 1, 10

People v. Moine (2021) 62 Cal.App.5th 440, 451-452 [remanding for reconsideration where court erroneously found defendant failed to meet dangerousness suitability requirement]

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand for resentencing is required when a court is unaware of the scope of its discretionary powers, unless the record clearly indicates the court would have reached the same conclusion had it been aware of its discretion]

Sixth Holding:

Here, the record does not clearly indicate how the court would have ruled had it applied the correct standard on the dangerousness issue. Indeed, the court expressed some regret that the law compelled it to find the defendant posed an unreasonable risk of danger.

Moreover, the Attorney General does not argue the defendant otherwise was ineligible or unsuitable for diversion as a matter of law. Accordingly, the proper remedy is a conditional reversal and remand with directions to reconsider the petition under the correct standard.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 640 [approving Court of Appeal’s decision to conditionally reverse a defendant’s convictions and sentence with instructions to conduct a hearing to consider eligibility for mental health diversion]

Case 000958

Error and/or relief

The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.

First Holding:

The Legislature enacted Penal Code sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)(1) and (b)(2)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

The court must 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.

Eligibility no longer turned on findings to the court’s satisfaction. The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise.

And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

PEN 1001.35(a)

PEN 1001.36(b)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s 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 this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

To answer that question, we review the record in the light most favorable to the prevailing party 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.

(Gary note: The opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

Case 000915

Error and/or relief

The trial court’s finding that he was unsuitable for diversion is unsupported by substantial evidence. We direct the trial court to vacate the order denying the defendant’s motion for mental health diversion and to enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion consistent with this opinion. If the court finds changed circumstances, it shall hold a further hearing on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The primary purposes of the legislation are to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services.

Authority:

PEN 1001.36

PEN 1001.35(a)-(c)

People v. Frahs (2020) 9 Cal.5th 618, 626

People v. Doron (2023) 95 Cal.App.5th 1, 7

Second Holding:

Section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a mental disorder, such as the one with which defendant was diagnosed, within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense.

If the defendant has been diagnosed with a mental disorder, the 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:

PEN 1001.36

Third Holding:

If a defendant meets these eligibility requirements, the defendant is suitable for pretrial diversion if four criteria are satisfied:

(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.

(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial.

(3) The defendant agrees to comply with treatment as a condition of diversion.

(4) 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(c)

Fourth Holding:

The proper inquiry for determining whether the fourth criterion is satisfied is whether there is an unreasonable risk the defendant will commit a super strike if treated in the community.

Super strikes include sexually violent offenses, child molestation, homicide, attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer or fire fighter, possession of a weapon of mass destruction, or a violent felony punishable by life imprisonment or death.

Authority:

PEN 1001.36(c)(4)

PEN 1170.18(c)

PEN 667(e)(2)(C)(iv)

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny mental health diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. Such discretion is commonly referred to as a court’s residual discretion.

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:

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial 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.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Moine (2021) 62 Cal.App.5th 440, 449

Seventh Holding:

(Gary note: The court then described facts specific to this defendant this case that led it to the conclusion that the court abused its discretion in concluding the defendant posed an unreasonable risk of danger to the public safety. One of the elements of the trial court’s concern was the defendant’s need for medication. I have listed the authority cited by the court on that point, but I see no value in detailing the facts specific to this case.)

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 84, 87 [holding no substantial evidence supported denying diversion even though there were two instances of defendant declining treatment and the offense took place while defendant was being treated pursuant to diversion]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 136−137 [holding no substantial evidence that defendant was unsuitable for diversion even though defendant had sustained periods of psychotropic medication non-compliance and resisted talking about his mental health]

Case 000904

Error and/or relief

The trial court denied the defendant’s application for mental health diversion, finding that although defendant was eligible for diversion, he was not suitable because he posed an unreasonable risk of danger to public safety if treated in the community.

There is insufficient evidence of an unreasonable risk that defendant will commit a super strike offense if treated in the community. We will reverse the judgment and remand the matter for a new hearing on defendant’s present suitability for mental health diversion.

First Holding:

Penal Code section 1001.36 gives a trial court discretion to grant pretrial diversion for individuals with certain mental health disorders. The trial court can postpone prosecution at any time in the judicial process, either temporarily or permanently, to allow the defendant to undergo treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 626

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147-1149

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

A defendant must be both eligible and suitable for mental health diversion. A defendant is eligible under section 1001.36 (b) if (1) the defendant has been diagnosed by a qualified mental health expert with a mental disorder as identified in the most recent edition of the DSM; and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Third Holding:

As for suitability, four circumstances must be satisfied: (1) in the opinion of a qualified mental health expert the defendant’s mental disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety as defined in section 1170.18.

Authority:

PEN 1001.36(c)(1)-(4)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892

Fourth Holding:

A defendant poses an unreasonable risk of danger to public safety under section 1170.18(c) if there is an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv), otherwise known as a super strike.

The enumerated super strike offenses include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, a serious or violent felony punishable by death or life imprisonment, a sexually violent offense, or a sexual offense committed against a minor under the age of 14.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

Fifth Holding:

We review a trial court’s decision to grant or deny a motion for mental health diversion for abuse of discretion. A trial court abuses its discretion when it makes an arbitrary decision by applying the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

There is no evidence defendant had been previously charged with a super strike offense, and his current offense is not a super strike. Defendant’s criminal history consists of two nonviolent felonies and four misdemeanor offenses. At the time of the hearing on his application, defendant was doing well in an outpatient program. He had successfully engaged in a treatment program for six months, he was maintaining housing and a job, he had not reoffended, and his treatment provider recommended defendant continue treatment in the community.

On this record, there is insufficient evidence to support a finding of an unreasonable risk that defendant will commit a super strike offense if treated in the community.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Case 000851

Error and/or relief

We conclude the trial court erred when it denied mental health diversion under Penal Code section 1001.36, conditionally reverse the judgment, and remand the matter for the court to reconsider the defendant’s motion.

First Holding:

Diversion under section 1001.36 postpones criminal proceedings to allow the defendant to undergo mental health treatment, subject to specified conditions. It is intended to mitigate the entry and reentry of people with mental disorders into the criminal justice system by addressing their unique needs while simultaneously protecting public safety. A recognition that incarceration accomplishes little to deter lawlessness, but successful mental health treatment helps individuals and makes communities safer, led the Legislature to create and then expand this pretrial diversion.

Authority:

PEN 1001.35(a)(c)

People v. Braden (2023) 14 Cal.5th 791, 801

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890–891

Second Holding:

To qualify for mental health diversion, defendants must meet the two eligibility criteria under section 1001.36(b), and the four suitability criteria set forth in subdivision (c) of that section.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Third Holding:

Eligible defendants are suitable for diversion where (1) in the opinion of a qualified mental health expert the defendant’s mental disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety’ as defined in section 1170.18, which concerns the risk the defendant will commit violent felonies colloquially referred to as super strikes.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Fourth Holding:

Even when the defendant makes a prima facie showing of meeting the statutory eligibility and suitability criteria, the court may nonetheless exercise its discretion to deny diversion.

But this residual discretion must be exercised consistent with the principles and purpose of the governing law, including the strong legislative preference for treatment of mental health disorders given the resulting benefits 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Fifth Holding:

We review a trial court’s ruling on a request for mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687

People v. Tourville (2026) 120 Cal.App.5th 439, 453

Sixth Holding:

A ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.

Authority:

People v. Turner (2020) 10 Cal.5th 786, 807

Seventh Holding:

The court erred in finding the defendant not suitable for diversion because of his repeated failures to comply with other forms of supervision. It was an abuse of discretion to deny diversion based on such reasoning, whether on the ground that the defendant’s symptoms would not respond to treatment  or on the ground that the recommended treatment plan would not meet his or her needs.

Authority:

PEN 1001.36(c)(1), (f)(1)(A)(i)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893-894

Eighth Holding:

We will conditionally reverse the judgment and remand the matter for the trial court to reconsider the defendant’s motion for mental health diversion, bearing in mind the statutory principles and purpose of the statute, including the goal of promoting increased diversion of individuals with mental disorders to mitigate their entry and reentry into the criminal justice system.

We express no opinion as to how the court should rule on remand. Still, we observe that denying diversion based on a defendant’s treatment history may be a proper exercise of discretion if the proposed treatment plan is no different from one that failed in the past.

On the other hand, a defendant’s failure to benefit from past treatment may not support an order denying diversion where the proposed treatment plan adequately addresses the defendant’s mental health needs and is significantly different from the prior treatment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892, 895

People v. Russo (2026) 121 Cal.App.5th 134, 139

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 894-895

Case 000825

Error and/or relief

We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding the defendant unsuitable for diversion.

(Gary note: I have set out the various holdings and authorities below that represent the applicable law and principles, but I have not recited the court’s analysis of the facts in this case on which it based there was no substantial evidence to support the court’s conclusion that the defendant was a danger to the community. Suffice it to say, the appellate court found the court’s reasoning inadequate to support denial of the request for mental health diversion.)

First Holding:

Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. The stated purpose of the diversion statute is to promote all of the following: (a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

If the defendant successfully completes diversion, including having in place a plan for long-term mental health care, the criminal charges shall be dismissed. However, if after diversion is granted, a qualified mental health expert concludes the defendant is performing unsatisfactorily in the assigned program, the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified.

Authority:

PEN 1001.36

PEN 1001.35

People v. Williams (2021) 63 Cal.App.5th 990, 995

People v. Frahs (2020) 9 Cal.5th 618, 626

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150

Second Holding:

Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program. A defendant is eligible if they meet two criteria: first, the defendant must have been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, within the last five years, by a qualified mental health expert.

Second, the disorder must be a significant factor in the commission of the charged offense. The 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:

PEN 1001.36(b)

Third Holding:

This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses.

Authority:

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

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688–689

Fourth Holding:

If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the diagnosis eligibility requirement, the first of these relies on input from a medical professional, in this instance the opinion of a qualified mental health expert, that the symptoms of defendant’s mental disorder would respond to mental health treatment.

The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. Only the fourth requirement necessitates a trial court finding, to wit, that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–894

Fifth Holding:

Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18(c) and 667(e)(2)(C)(iv), an unreasonable risk to public safety means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.

The listed felonies are colloquially known as “super strikes.” Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. We note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense.

Authority:

PEN 1001.36(c)(4)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Moine (2011) 62 Cal.App.5th 440, 450

People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310

Sixth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendant will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Seventh Holding:

Finally, even if a defendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this residual discretion is not unfettered; it must be exercised consistent with the principles and purpose of the governing law. Where the court chooses to exercise that 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 these goals.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Eighth Holding:

We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. Under this deferential standard of review, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Ninth Holding:

We review the trial court’s ultimate decision whether to grant mental health diversion for an abuse of discretion. By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

Case 000807

Error and/or relief

The court’s finding that the People overcame the statutory presumption that the defendant’s mental health diagnosis was a significant factor in the commission of the offenses was not supported by substantial evidence. Therefore, its denial of his application on that basis was an abuse of discretion.

As a result, we conditionally reverse the judgment and remand with instructions for the trial court to find the defendant eligible for diversion and hold a hearing to determine the defendant’s suitability for diversion.

If the court determines the defendant is suitable for diversion, it may grant his application. If the court determines the defendant is not suitable, the defendant’s convictions and sentence shall be reinstated.

First Holding:

We review a trial court’s ruling on an application for mental health diversion for an abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on findings that are not supported by substantial evidence. By definition, substantial evidence’ requires evidence and not mere speculation.

Authority:

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

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Second Holding:

In reviewing a trial court’s finding that a fact has been proven by clear and convincing evidence, the question before us is whether the record contains substantial evidence from which a reasonable fact finder could have found it highly probable that the [disputed] fact was true. To answer that question, we review the record in the light most favorable to the prevailing party 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

Third Holding:

The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements. First, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Second, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Fourth Holding:

To ensure that diversion applies as broadly as possible, the Legislature amended section 1001.36 to include a presumption that a defendant’s mental disorder diagnosis was a significant factor in the commission of the offense if the diagnosis occurred within the past five years. Once the presumption is established, to overcome it, the People must prove by clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor in defendant’s commission of the offense.

Authority:

PEN 1001.36(b)(2)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Fifth Holding:

Even if a defendant meets the eligibility requirements, before the court can grant a defendant diversion, the court must also find the defendant suitable for diversion using the four criteria outlined in section 1001.36(c). Specifically, the court must find that (1) a qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.26(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Sixth Holding:

Even after finding a defendant eligible and suitable for diversion, however, a trial court may exercise its residual 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.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Seventh Holding:

In 2024, a mental health professional diagnosed the defendant with PTSD, major depressive disorder with psychotic features, and alcohol use disorder. Defendant’s diagnosis established a presumption that his mental health disorder was a significant factor in the commission of the robberies.

In response, the People argued that that it was simply impossible to believe that PTSD or depression caused the defendant and his cohorts to plan the robberies, which were obviously coordinated and planned out. The People offered no evidence, and the trial court did not identify any, establishing by clear and convincing evidence, that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses. Their speculation about the cause of the robberies is not substantial evidence.

The absence of evidence proving that the defendant’s mental disorder was a factor in the commission of the [robberies] is not substantial evidence supporting a finding by clear and convincing evidence that the defendant’s mental disorder was not a factor in the commission of the offenses.

By finding the presumption was overcome even though the People offered no evidence that would establish that defendant’s mental disorder was not a motivating, causal, or contributing factor to defendant’s commission of the offenses, the trial court effectively shifted the burden to the defendant to affirmatively prove that his mental disorder contributed to the offenses. That is not the showing the statute requires.

Authority:

PEN 1001.36(b)(2)

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

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

Eighth Holding:

A court abuses its discretion when it bases its decision on express or implied factual findings that are not supported by substantial evidence. Because substantial evidence does not support the trial court’s finding that the presumption was overcome, it abused its discretion in denying defendant diversion based on that finding.

Authority:

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 81

People v. Moine (2021) 62 Cal.App.5th 440, 449

Ninth Holding:

We review the trial court’s factual findings for substantial evidence. A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Once such evidence is found, the substantial evidence test is satisfied. The trial court found defendant would not pose an unreasonable risk to public safety as defined within the statute. Meaning that he was not likely to commit a super-strike offense if granted diversion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. Because the record contains substantial evidence to support that finding, we do not disturb it.

Authority:

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

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Carmony (2004) 33 Cal.4th 367, 377

 

Case 000798

Error and/or relief

The court erred in denying his petition either because the court either improperly shifted the burden to the defendant to prove his mental disorder was a significant factor in his charged crimes, or because substantial evidence does not support a finding by clear and convincing evidence that his mental disorder was not such a factor.

First Holding:

Penal Code section 1001.36 provides that a defendant in a criminal case is eligible for mental health diversion if he demonstrates: (1) he has been diagnosed with a recognized mental disorder; and (2) that disorder was a significant factor in the commission of the charged crime.

The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. However, if the defendant has been diagnosed with a mental disorder, the 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:

PEN 1001.36(b)(2)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1078–1079

Second Holding:

Additionally, the statute gives the trial court discretion to deny diversion even if the statutory requirements are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

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

Third Holding:

We review the 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 when it bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Pacheco (2022) 75 Cal.App.5th 207, 213

People v. Moine (2021) 62 Cal.App.5th 440, 449

Fourth Holding:

A trial court is not bound by an expert’s testimony and opinion. But even were the court to discount the psychiatrist’s report’s conclusion in its entirety, the absence of evidence proving that petitioner’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 petitioner’s mental disorder was not a factor in the commission of the offenses. It was the prosecution’s burden to present such clear and convincing evidence.

Here, it appears that the court either placed the burden on the defendant to demonstrate his mental disorder was a significant factor in the commission of the charged offenses or found clear and convincing evidence that the mental disorder was not a significant factor. In other words, the court either applied the wrong legal standard or based its decision on a factual finding unsupported by substantial evidence. Either way, reversal is required.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re Scott (2003) 29 Cal.4th 783, 823 [The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even a unanimity of expert opinion]

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

People v. Moine (2021) 62 Cal.App.5th 440, 449

Case 000789

Error and/or relief

We conclude the trial court abused its discretion. It failed to follow the governing statute’s directions. Its conclusion that the defendant posed an unreasonable risk to public safety, as defined by section 1001.36(c)(4), was unsupported by substantial evidence. Accordingly, we issue the requested writ of mandate and direct the court to grant the defendant’s motion for mental health diversion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a diversion program 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. By its terms, section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 887, 890

Second Holding:

The decision whether to grant diversion is a two-step process. First, the court determines if the defendant satisfies the eligibility requirements set forth in section 1001.36(b). 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.

Authority:

PEN 1001.36(a) – (b)

Third Holding:

Second, the court determines if the defendant is suitable for diversion under the factors set forth in section 1001.36(c). Those factors are: (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(a) and (c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Fourth Holding:

Finally, even when all eligibility and suitability factors are met, courts have discretion to deny mental health diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 895-896

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Fifth Holding:

Our review is for abuse of discretion.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sixth Holding:

Under section 1170.18, the Legislature has narrowly defined an unreasonable risk of danger to public safety to mean an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). The violent felonies encompassed in this definition are known as super strikes. The super strikes are murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, any serious or violent felony punishable by death or life imprisonment, or any sexually violent offenses or sexual offense committed against minors under the age of 14.

Authority:

PEN 1170.18(c)

People v Moine (2021) 62 Cal.App.5th 440, 449

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1150-1151

Seventh Holding:

By statute, when determining the risk of danger, t]he court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. A defendant who seeks diversion is not being sentenced, so the general sentencing objectives set forth in rule 4.410 of the California Rules of Court are inapplicable.

Authority:

PEN 1001.36(c)(4)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Eighth Holding:

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.

The trial court expressed that it could not know whether the defendant was going to commit a super strike, and based on his two violent incidents from 2007 and 2010, the trial court concluded that there was a danger that there was a likelihood that the defendant could commit a super strike, thereby permitting the trial court to exercise its residual discretion to deny diversion.

But the court misunderstood what was required. The plain language of the statute requires a finding that a defendant will not pose an unreasonable risk of committing a super strike.

The statute does not, as the trial court suggested, require a prediction that a defendant will not, in fact, commit a super strike. The correct analysis thus requires assessing probabilities; not predicting outcomes, as the trial court incorrectly understood.

These are two distinct types of inquiry. Applying the correct standard to the record before us, we conclude the evidence is insubstantial that the defendant is too dangerous to be treated in the community on the ground that he poses an unreasonable risk of committing a super strike.

A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.

Authority:

PEN 1001.36(c)(4)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Cluff (2001) 87 Cal.App.4th 991, 998

Ninth Holding:

The only question that remains is whether further proceedings are required. We conclude they are not. The trial court found that the defendant satisfied all criteria for diversion except the public safety factor, leaving nothing further to be decided. The People do not argue otherwise. Under these circumstances, we will reverse the court’s order with directions to grant the defendant’s motion unless the People present changed circumstances that warrant rehearing.

Authority:

People v. Williams (2021) 63 Cal.App.5th 990, 1005

 

Case 000749

Error and/or relief

The trial court abused its discretion in denying mental health diversion by basing its denial on findings not supported by substantial evidence and by exercising its discretion in a manner inconsistent with the principles and purpose of the statute.

(Gary’s note: The conclusion that the court abused its discretion relied extensively on facts reviewed by the Court of Appeal. These summaries are designed more to recite the various principles than to ferret out exactly how the principles achieved the result in the particular case. Sometimes it is obvious, but many times the outcome is very fact-dependent. Since these unpublished opinions cannot be cited as authority, it serves little purpose to recite the extensive details that led to the result in a particular case.)

First Holding:

We review a trial court’s order denying 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.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

People v. Moine (2021) 62 Cal.App.5th 440, 448

Second Holding:

Mental health diversion under section 1001.36 requires the trial court to find the defendant both eligible for diversion and suitable for the program. A defendant is eligible for mental health diversion if both of the following criteria are met: (1) defendant presents evidence he or she has been diagnosed with a mental disorder by a qualified mental health expert, identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSMD), within the last five years and (2) defendant’s mental disorder was a significant factor in the commission of the charged offense.

A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

Authority:

PEN 1001.36(b)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Third Holding:

As to suitability, each of the following criteria must be met: (1) in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) the defendant consents to diversion and waives their right to a speedy trial; (3) the defendant agrees to comply with treatment as a condition of diversion; and (4) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

In determining whether the defendant poses an unreasonable risk of danger to public safety, the court may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Authority:

PEN 1001.36(c)

Fourth 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. This residual discretion is not unfettered and must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134-135

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891 [court’s discretion must be informed by legal principles and purpose of statute]

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 [all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue]

Fifth Holding:

The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. 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.

A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved. 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 691

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

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