Tag Archives: Diversion

Discretion, Duty of the court, Sentencing, Standard of review

Case 001053

Posted on by Gary McCurdy

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]

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000999

Posted on by Gary McCurdy

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

Discretion, Standard of review, Statutory interpretation

Case 000981

Posted on by Gary McCurdy

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

Appellate Principles, Discretion

Case 000968

Posted on by Gary McCurdy

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]

Discretion, Standard of review

Case 000958

Posted on by Gary McCurdy

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