Trial court erred in denying mental health diversion (Pen. Code, § 1001.36) on the ground that defendant had not previously remained drug-free after treatment, where she had not previously received treatment for her underlying mental health symptoms. Defendant requested mental health diversion after she was charged with attempted robbery arising from an incident in which she handed a liquor store clerk a note written in lipstick on a napkin stating, “Let me get the money.” Although the trial court found defendant met many of the requirements for diversion, it denied her request, finding her inability to remain drug free after prior treatment indicated she would not respond well to mental health treatment. Defendant petitioned for writ of mandate. Held: Petition granted. 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. Here, the trial court’s principal reason for denying diversion was its assessment that defendant had failed in two prior attempts at drug treatment, as evidenced by the fact that she relapsed and thereafter resumed her criminal behavior. However, the undisputed evidence indicated defendant never received any coordinated treatment for her two primary mental health diagnoses (PTSD and major depressive disorder), and the doctor’s report submitted in support of her request for diversion made clear that defendant was unable to remain sober because her underlying mental health conditions were never addressed. Thus, there was insufficient evidence to conclude her symptoms would not respond to treatment. The evidence was also insufficient to support the trial court’s finding that defendant’s recommended treatment plan would not meet her “specialized mental health treatment needs” (§ 1001.36, subd. (f)(1)(A)(i)) because she had a history of receiving prior substance abuse treatment and then reoffending. This does not rationally support a conclusion that mental health treatment coupled with substance abuse treatment would not be sufficient, and the alleged failure of prior drug treatment plans says nothing about the adequacy of the current proposed treatment plan.
The trial court’s finding that defendant was not suitable for diversion because she posed an “unreasonable risk of danger to the public” (§ 1001.36, subd. (c)(4)) was not supported by the evidence. Under section 1001.36(c)(4), diversion may be denied where the trial court finds the defendant poses “an unreasonable risk of danger to public safety” if treated in the community, meaning there is a likelihood the defendant will commit a “super strike” violent felony (see § 667, subd. (e)(2)(C)(iv)). Here, the trial court made no such finding. Nevertheless, it denied diversion, referencing its “residual discretion” and concluding without further analysis that defendant’s behavior “pose[d] an unreasonable risk of danger to public safety.” This was error. There was no substantial evidence defendant was likely to commit a super strike offense, as the charged offense involved no evidence of a weapon or threat of violence. Further, the trial court was not authorized to invoke its “residual discretion” to create a definition of “risk to public safety” that was inconsistent with the statutory definition, which requires finding a risk of committing a super strike. Defendant’s request for diversion should have been granted. [Editor’s Note: Justice Irion dissented, concluding the case was not appropriate for writ review and in any event the trial court did not abuse its discretion in denying diversion.]