Tag Archives: Diversion

Error and/or relief

We will reverse the conviction and remand for the trial court to reconsider defendant’s suitability for mental health diversion according to the factors in section 1001.36(c) and defendant’s current circumstances. To the extent the court exercises its residual discretion under section 1001.36(a), it must take into account the Legislature’s intent and the statute’s underlying purposes.

Although we express no opinion as to how the court should decide the matter on remand, we note that the suitability inquiry must be informed not only by defendant’s past performance but also by his present circumstances and prospects for diversion compliance.

First Holding:

Since 2018, section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and legislative amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

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

Second Holding:

As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. If a defendant is found eligible for mental health diversion, a trial court must also consider whether the defendant is suitable for diversion.

According to the statute, a defendant is suitable for diversion if, in the opinion of a mental health expert, the defendant’s symptoms would respond to treatment; the defendant consents to diversion and waives his right to a speedy trial; the defendant agrees to comply with treatment; and the defendant will not pose an “unreasonable risk of danger to public safety” as defined in section 1170.18.

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the defendant will commit one of certain enumerated violent felonies, known colloquially as “super strikes.”

Authority:

PEN 1001.36

PEN 1170.18

Third Holding:

Even if a defendant meets the enumerated suitability criteria, a trial court retains discretion to deny diversion. But that residual discretion must be exercised consistent with the principles and purpose of the governing law. We review a decision to deny diversion for abuse of discretion.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887, 888, 891

Fourth Holding:

We see no substantial evidence in the record that would have supported an unsuitability finding as defined under the statute. Section 1001.36(c) prescribes specific suitability factors and does not expressly contemplate a finding of unsuitability based on other factors not identified in the statute. We acknowledge it is possible to construe the court’s finding of unsuitability as an exercise of its residual discretion under section 1001.36(a).

But the only reasoning articulated by the court involved defendant’s criminal history and past failures to appear (which could themselves have been connected to a mental health disorder), his past difficulties complying with treatment (notwithstanding the evaluators’ conclusions about his prospects for future treatment), and the circumstances of the charged offense. The trial court’s statement of the reasons for its decision thus did not reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

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

Error and/or relief

The petitioner unsuccessfully moved for mental health diversion under Penal Code section 1001.36. In petitioning this court for a writ of mandate, the petitioner contends that the trial court erred in finding him ineligible on six counts and eligible but unsuitable on the seventh count. We agree. We therefore grant the petition and direct the trial court to vacate its order denying the motion for mental health diversion and hold a new hearing on the motion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a program of pretrial diversion 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.

The express purpose of this legislation was to increase diversion of such individuals based on concerns that incarceration only serves to aggravate their preexisting conditions and does little to deter future lawlessness. Successful mental health treatment, in contrast, both helps the individual and makes the community safer. More recent amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

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

Second Holding:

Effective January 1, 2023, mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specific in the statute.

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.

They are suitable 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 in sections 1170.18 and 667(e)(2)(C)(iv).

Authority:

PEN 1001.36

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

Third Holding:

A defendant’s eligibility no longer turned on findings to the court’s satisfaction. Rather, defendants are generally eligible if they have been diagnosed with a recognized mental disorder. Beyond that, the amended statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime.

The court is directed to 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. In practical terms, following the 2022 amendments, defendants with a proper mental health diagnosis will seldom be ineligible for diversion. The more difficult question will be determining whether they are suitable.

Authority:

PEN 1001.36

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

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

Fourth Holding:

We review for substantial evidence a court’s finding by clear and convincing evidence that a mental disorder was not a motivating factor, causal factor, or constributing factor. We consider 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.

Authority:

PEN 1001.36(b)(2)

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

Fifth Holding:

Of the four factors set forth in the statute regarding suitability, only the fourth necessitates a trial court finding–that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. But that risk is severely limited by incorporation of sections 1170.18 and 667(e)(2)(C)(iv) as the definition of unreasonable risk of danger to public safety and the list of felonies conviction of which would preclude eligibility.

Authority:

PEN 1001.36

PEN 1170.18

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

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

Sixth 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. 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. 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:

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

Seventh Holding:

To the extent the court’s finding of unsuitability could be based on any of the four eligibility factors, it is unsupported by substantial evidence.

Authority:

Flareau v. Superior Court of Riverside County (2026) 118 Cal.App.5th 681, 690 [when reviewing the trial court’s suitability finding, we must determine whether substantial evidence supports the trial court’s findings concerning the four suitability factors]

Eighth Holding:

The People argue that the trial court’s suitability finding was instead its use of its residual discretion. If that is the case, however, the trial court abused its discretion by failing to consider the underlying purposes of section 1001.36 or explain why diversion would not meet those goals.

Authority:

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

Error and/or relief

The trial court abused its discretion in finding the defendant unsuitable for mental health diversion, citing an unreasonable risk of danger to public safety.

First Holding:

The primary goal of section 1001.36 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. Advances in psychology and neuroscience inform this goal.

Authority:

Sarmiento v. Superior Ct. (2024) 98 Cal.App.5th 882, 898

Second Holding:

Section 1001.36 narrowly defines an unreasonable risk of danger to public safety as requiring an unreasonable risk that the defendant will commit one of several statutorily enumerated violent felonies colloquially known as super strikes.

Authority:

PEN 1001.36(c)(4)

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

Third Holding:

We review a trial court’s decision on whether to grant section 1001.36 diversion for abuse of discretion. In this context, 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.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Fourth Holding:

In concluding that the defendant posed such a danger, the court found she was likely to continue selling fentanyl, that the fentanyl she sold was likely to kill someone, and that she could be prosecuted for such a death on a theory of implied malice murder. According to the court, this established an unreasonable risk that the defendant would commit a super strike—murder—and the court denied diversion.

The court’s reasoning rests on purely speculative factual findings unsupported by any evidence. Speculation is not evidence, less still substantial evidence. The court did not cite any other basis for denying diversion, nor do the People cite an alternative basis for affirming the court’s order. The court abused its discretion in denying diversion on this basis. Accordingly, we reverse.

Authority:

Wise v. DLA Piper LLP (2013) 220 Cal.App.4th 1180, 1188

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