Filed 6/14/22

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EVAN BUNAS,

Defendant and Appellant.

 D078819

 (Super. Ct. Nos. SCD272661,

 SCD264352)

APPEAL from an order of the Superior Court of San Diego County, 

Polly H. Shamoon, Judge. Affirmed in part; reversed in part and remanded.

Janice R. Mazur, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. 

Swenson, Marvin E. Mizell and Daniel J. Hilton, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

I.

INTRODUCTION

In a prior opinion in this matter involving defendant James Evan 

Bunas,1 we conditionally reversed the judgment and the underlying 

convictions2 and remanded the matter to the trial court with directions to 

conduct a mental health diversion eligibility hearing under Penal Code 

section 1001.363 and to determine whether to place Bunas in mental health 

diversion. (Bunas I.) We further directed that, if the trial court determined

that Bunas was ineligible for diversion or exercised its discretion not to place 

Bunas on diversion, then the court was to reinstate Bunas’s convictions and 

resentence him. We explained that, in this instance, the court was “to allow 

for a full resentencing,” due to the court’s “misimpression about a material 

fact concerning Bunas’s aggregate sentence,” in its sentencing of Bunas in the 

two cases before it. (Bunas I.)

On remand, the trial court denied Bunas’s request for mental health 

diversion. The court did not resentence Bunas.

1 On our own motion, we take judicial notice of our prior opinion in this 

matter, People v. Bunas (Apr. 14, 2020, D075234) [nonpub. opn.] (Bunas I) 

and the record in Bunas I. (See Evid. Code, §§ 459 [“The reviewing court may 

take judicial notice of any matter specified in [Evidence Code] [s]ection 452”], 

452, subd. (d) [permitting a court to take judicial notice of the “[r]ecords of 

(1) any court of this state”].)

2 In our prior opinion, we explained that in using the term “convictions,” 

we intended to refer to Bunas’s plea of guilty to certain charges and his 

admissions to certain enhancement, strike, and serious felony allegations. 

(Bunas I, supra, fn. 3.)

3 Unless otherwise specified, all subsequent statutory references are to 

the Penal Code.
3

Bunas raises two claims in this appeal. First, Bunas contends that the 

trial court abused its discretion in denying his motion for mental health 

diversion. Bunas maintains that the court abused its discretion by: 

(1) “refusing to hold a hearing” to determine his eligibility for diversion; 

(2) determining that he was unsuitable for diversion based “solely on the 

offense”; and (3) failing to hold an evidentiary hearing on his motion for 

diversion.4 In presenting the first of these arguments, Bunas contends that 

the court erred in relying on general objectives of sentencing in concluding 

that the “goals of punishment and deterrence outweighed the ‘needs of the 

defendant,’ ” in denying diversion.

Second, Bunas contends that the trial court erred in failing to 

resentence him in accordance with this court’s prior decision.

We conclude that the trial court did not commit reversible error in 

denying Bunas mental health diversion. As we explain, although we reject 

Bunas’s three distinctly raised claims of error, we agree with Bunas that the 

court erred in relying on “objectives of sentencing” in ruling on his motion for 

diversion. However, we conclude that this error does not warrant reversal of 

the trial court’s denial of Bunas’s motion for diversion.

We further conclude that in failing to resentence Bunas, the trial court 

committed reversible error. Accordingly, we affirm the order denying 

4 These claims are distinctly raised in separately captioned arguments in 

Bunas’s brief, as is required under our Rules of Court. (See Cal. Rules of 

Court, rule 8.204(a)(1)(B) [a brief in a civil appeal must “[s]tate each point 

under a separate heading or subheading summarizing the point, and support 

each point by argument and, if possible, by citation of authority”]; Cal. Rules 

of Court, rule 8.360 [“briefs in criminal appeals must comply as nearly as 

possible with rule[ ] . . . 8.204”].)
4

diversion, and remand once again for resentencing in accordance with the 

principles outlined in our prior opinion.

II.

FACTUAL AND PROCEDURAL BACKGROUND5

A. Procedural background

1. Proceedings prior to our opinion in Bunas I

In SCD272661, Bunas pled guilty to corporal injury of a spouse 

(§ 273.5, subd. (a)), making a criminal threat (§ 422), and felony child abuse 

(§ 273a, subd. (a)). With respect to the corporal injury offense, Bunas 

admitted personally using a deadly or dangerous weapon (§ 12022, subd. 

(b)(1)) and inflicting great bodily injury under circumstances involving 

domestic violence (§ 12022.7, subd. (e)). Bunas also admitted, with respect to 

the criminal threat offense, that he used a deadly weapon (§ 1192.7, subd. 

(c)(23)). Finally, Bunas admitted having suffered a strike prior (§§ 667, 

subds. (b)–(i), 1170.12) and a serious felony prior (§§ 667, subd. (a)(1), 668, 

1192.7, subd. (c)).

In June 2018, the trial court sentenced Bunas to 15 years and 4 months 

in SCD272661. In addition, because Bunas had been on probation in a 

separate case (SCD264352) at the time of his commission of the offenses in 

SCD272661, the court revoked probation in SCD264352 and imposed a

sentence of 20 months in prison in that case, to be served consecutively to the 

sentence imposed in SCD272661, for a total aggregate sentence of 17 years.

In November 2018, the trial court recalled the case for resentencing.6

At resentencing, the court imposed an aggregate sentence of 15 years and 

5 Parts II.A.1, II.A.2 and II.B are drawn from Bunas I.
5

8 months in this case, SCD272661. With respect to SCD264352, the court 

stated, “It was a concurrent. It’s not consecutive, and it doesn’t have to be 

touched at all because it didn’t add anything to this sentence.”

2. Our opinion in Bunas I

In Bunas I, Bunas requested that the matter be remanded for a hearing 

to allow the trial court to exercise its discretion to grant mental health 

diversion (§ 1001.36), in light of a change in the law. Bunas also argued that, 

in any event, he was entitled to a new sentencing hearing, given the lack of 

clarity in the record with respect to the total aggregate sentence that the 

court intended to impose in the two cases.

We agreed with both of Bunas’s contentions. Accordingly, our 

disposition stated in relevant part:

“The judgment and the convictions are conditionally 

reversed. The matter is remanded to the trial court with 

directions to conduct a mental health diversion eligibility 

hearing under section 1001.36. If the court determines that 

Bunas qualifies for diversion, then the court may grant 

diversion. If Bunas successfully completes diversion, then 

the court shall dismiss the charges against him.

“If the court determines that Bunas is ineligible for 

diversion or determines that Bunas is eligible for diversion 

but exercises its discretion to not place Bunas on diversion, 

or if the court places Bunas on diversion but he fails to 

successfully complete diversion, then the court shall 

reinstate Bunas’s convictions. The court shall thereafter 

resentence Bunas in a manner consistent with our 

discussion in part III.B, ante.” (Bunas I.)

6 As noted in Bunas I that “[t]he record indicates that the trial court 

recalled the case for resentencing pursuant to a request from the Department 

of Corrections and Rehabilitation.”
6

Our discussion in part III.B of Bunas I, explained that “in the event 

that the trial court does not grant [Bunas] mental health diversion or the 

court grants diversion, but he fails to successfully complete it, a remand for a 

full resentencing is appropriate under the circumstances of this case,” (italics 

added) and we described those circumstances in detail.

3. Proceedings on remand

As discussed in greater detail in part III.A.3, post, on remand, Bunas 

filed a motion requesting that the trial court grant him mental health 

diversion pursuant to section 1001.36. Together with his motion, Bunas 

lodged a December 2017 psychological evaluation of him prepared by 

Dr. Clark Clipson. In addition, Bunas lodged a July 5, 2017 document 

drafted by a detective who investigated the charged offenses, which 

summarized a statement made by Bunas’s sister.

The People filed an opposition to the motion. With their opposition, the 

People lodged the probation report from SCD264352. The People also lodged 

a February 2016 psychological evaluation of Bunas prepared by Dr. Greg 

Michel in connection with SCD264352.

The trial court held a videoconference hearing on Bunas’s motion on 

March 16, 2021. At the outset of the hearing, Bunas’s counsel requested that 

the hearing be continued so that Bunas could attend the hearing in person 

when the prison in which he was incarcerated resumed transporting inmates 

for such proceedings. The trial court orally denied both the request for a 

continuance and the motion for diversion.

The trial court entered a minute order that same day denying Bunas’s 

request for a continuance and his motion for diversion.
7

4. This appeal

Bunas timely appealed from the trial court’s March 16, 2021 order.7

B. Factual background8

Bunas inflicted corporal injury that could have resulted in a traumatic 

condition to the victim, who was his domestic partner. During his infliction 

of this injury, Bunas personally used a dangerous and deadly weapon, i.e., a 

knife, and personally inflicted great bodily injury. Bunas also threatened the 

victim in a way that caused her sustained fear, and he intended to instill fear 

in the victim. In addition, Bunas put a child who was in his custody in 

harm’s way. Bunas also previously suffered a conviction that was both a 

serious felony prior and a strike prior.

III.

DISCUSSION

A. The trial court did not commit reversible error in denying Bunas’s motion 

for diversion

Bunas claims that the trial court abused its discretion in denying his 

motion for diversion. 

7 As explained in footnote 21, post, while this appeal was pending, Bunas 

filed a petition for habeas corpus in which he contended that, in the event 

this court determined that he forfeited his request for an evidentiary hearing 

on his motion for diversion, his trial counsel provided ineffective assistance in 

failing to expressly request such a hearing.

8 In Bunas I, we explained that in light of Bunas’s guilty plea in 

SCD272661, there was no trial and our factual background was drawn from 

the plea colloquy. In part III.A.3.a–b, post, we provide additional factual 

background with respect to evidence as to the circumstances of the charged 

offenses, as well as Bunas’s commission of prior offenses, which was 

presented to the trial court on remand in connection with Bunas’s motion for 

mental health diversion.
8

1. Standard of review

In People v. Moine (2021) 62 Cal.App.5th 440, the Court of Appeal 

concluded that the abuse of discretion standard of review applies “on appeal 

from a trial court’s denial of mental health diversion.” (Id. at p. 448.)

“A court abuses its discretion when it makes an arbitrary or capricious 

decision by applying the wrong legal standard [citations], or bases its decision 

on express or implied factual findings that are not supported by substantial 

evidence [citation].” (Id. at p. 449.)

2. Governing law

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

Court provided an overview of the mental health diversion statute:

“Section 1001.36 authorizes a pretrial diversion program 

for defendants with qualifying mental disorders. The 

statute defines ‘ “pretrial diversion” ’ as ‘the postponement 

of prosecution, either temporarily or permanently, at any 

point in the judicial process from the point at which the 

accused is charged until adjudication, to allow the 

defendant to undergo mental health treatment . . . .’ 

(§ 1001.36, subd. (c).) 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.’ (§ 1001.35, subds. (a)-(c).)” (Id. at 

p. 626.)

The Frahs court outlined various “threshold eligibility requirements,” 

(Frahs, supra, 9 Cal.5th at p. 627) that a defendant must satisfy before a trial 

court may grant mental health diversion:
9

“As originally enacted, section 1001.36 provided that a trial 

court may grant pretrial diversion if it finds all of the 

following: (1) the defendant suffers from a qualifying 

mental disorder; (2) the disorder played a significant role in 

the commission of the charged offense; (3) the defendant’s 

symptoms will respond to mental health treatment; (4) the 

defendant consents to diversion and waives his or her 

speedy trial right; (5) the defendant agrees to comply with 

treatment; and (6) the defendant will not pose an 

unreasonable risk of danger to public safety if treated in 

the community. (Former § 1001.36, subd. (b)(1)–(6).) 

Section 1001.36 was subsequently amended by Senate Bill 

No. 215 (2017–2018 Reg. Sess.) (Senate Bill 215) to specify 

that defendants charged with certain crimes, such as 

murder and rape, are ineligible for diversion. (§ 1001.36, 

subd. (b)(2), as amended by Stats. 2018, ch. 1005, § 1.)” (Id.

at pp. 626–627.)

The Frahs court explained further, “If the defendant makes a prima 

facie showing that he or she meets all of the threshold eligibility 

requirements and the defendant and the offense are suitable for diversion, 

and the trial court is satisfied that the recommended program of mental 

health treatment will meet the specialized mental health treatment needs of 

the defendant, then the court may grant pretrial diversion. (§ 1001.36, 

subds. (a), (b)(3) & (c)(1).)” (Frahs, supra, 9 Cal.5th at p. 627.)

The Frahs court also outlined several key features of the statutory 

diversion scheme:

“The maximum period of diversion is two years. (Id., subd. 

(c)(3).) If the defendant is subsequently charged with an 

additional crime, or otherwise performs unsatisfactorily in 

the assigned program, then the court may reinstate 

criminal proceedings. (Id., subd. (d).) ‘If the defendant has 

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’ and ‘the 
10

arrest upon which the diversion was based shall be deemed 

never to have occurred.’ (Id., subd. (e).)” (Frahs, supra, 

9 Cal.5th at p. 627.)

3. Factual and procedural background

a. Bunas’s motion for mental health diversion

On remand from Bunas I, Bunas filed a motion for mental health 

diversion pursuant to section 1001.36. In his motion, Bunas outlined the 

facts of the current offense as described in the probation report. Bunas 

explained that on the day of the incident giving rise to the charged offenses, 

he had been at a wedding with his girlfriend. While at the wedding, Bunas’s 

girlfriend spoke with a male friend of hers who is an attorney and who had 

represented her during a previous custody dispute with Bunas. Bunas “felt 

disrespected,” and he punched the attorney in the face.

Later that evening, Bunas returned to the residence where he lived 

with his girlfriend and his two children.9 According to Bunas, the following 

then occurred:

“While [Bunas’s girlfriend] was on the toilet, Mr. Bunas

entered the bathroom and began hitting her in the head 

with a large flashlight. [Bunas’s girlfriend] fell off the

toilet into the bathtub. [Bunas] accused her of ruining his 

life and said he wanted to kill her before walking out of the 

bathroom. [Bunas] then threw the flat screen [television]

in the bedroom on the floor and broke it.

“Fearing Mr. Bunas would return, [Bunas’s girlfriend] went 

into [their] son’s bedroom with [their son]. Mr. Bunas came 

9 Although Bunas’s motion referenced only one of the two children, the 

probation report indicates that, at the time of the charged offense, Bunas 

lived with his girlfriend, their biological child, and Bunas’s son from a 

previous relationship. Both children, who were ages 9 and 13 at the time of 

the offense, were at home during the incident.
11

in the room and began yelling at her and hitting her with 

the flashlight again. [Bunas] grabbed her by the hair and 

began to drag her out of the bedroom as [their son] began to 

scream, ‘Please don’t kill mommy.’ Mr. Bunas let [his 

girlfriend] go and left the room. [Bunas’s girlfriend] then 

heard the defendant start his motorcycle and leave. 

Assuming he was gone for the night, she took [their son]

back to her bedroom to sleep.

“While in bed, [Bunas’s girlfriend] got a call from [Bunas’s 

sister], who said she called after she received a call from 

her brother. Mr. Bunas had told his sister that he had just 

killed [his girlfriend]. Mr. Bunas[’s] sister reported that 

she felt Mr. Bunas had ‘snapped’ and that he was talking 

nonsense. While they were on the phone, Mr. Bunas came 

in the room holding a large knife or machete. Mr. Bunas 

took the phone from [his girlfriend] and threw it, then 

proceeded to strike her in the head with the knife while 

yelling, ‘I’m going to kill you, you fucking bitch, you ruined 

my life.’ He then stopped and fled on foot. [Bunas’s 

girlfriend] then called the police. [Their nine-year-old son]

witnessed the entire incident. When police arrived, 

[Bunas’s girlfriend] was taken to the hospital for treatment 

of several large cuts to her ear and head.”

Bunas argued that the trial court should grant him diversion because 

he suffered from a mental disorder that was “the paramount factor to his 

conduct in the instant offense.”

Specifically, Bunas briefly10 argued that he satisfied each of the 

elements of the statutory eligibility factors outlined in section 1001.36, 

subdivision (b). Bunas stated that he suffered from several mental disorders 

including “major depressive disorder, post-traumatic stress-disorder, [and] 

alcohol and opioid use disorder,” and that his mental disorders were a 

10 Bunas’s analysis of the eligibility factors was approximately one and a 

half pages in length.
12

significant factor in his criminal conduct. In particular, Bunas argued that 

his “exposure to violence and abuse,” led to his mental disorders and 

culminated in his actions on the day of the charged offenses. He argued 

further that his mental disorders would respond to treatment, and stated 

that he would consent to diversion and comply with all terms and conditions 

of any treatment providers. Finally, Bunas contended that he did not pose a 

risk to public safety “as defined by . . . section 1170.18.”11 He argued:

“[S]ection 1170.18 defines an unreasonable risk of danger 

to public safety as an unreasonable risk that, in this case, 

Mr. Bunas will commit a new super strike as defined in the 

[P]enal [C]ode. While Mr. Bunas does have a criminal 

history that includes crimes of violence, he has never been 

convicted of a violent strike offense pursuant to [P]enal 

[C]ode section 667.5.[12] Moreover, Dr. Clipson opines in 

his psychological report that Mr. Bunas[’s] mental health 

disorders were significant factors in his only violent 

convictions, cases SCD272661(the instant case) and 

SCD264352 (probation case). Therefore any chance of 

violent conduct is tied to Mr. Bunas[’s] treatment of his 

mental health disorders, which he is committed to [sic][.] 

This shows Mr. Bunas does not pose an unreasonable risk 

of committing a new super strike and does not pose an 

unreasonable risk of danger to public safety.”

With his motion, Bunas lodged Dr. Clipson’s December 2017 

psychological evaluation. In his evaluation, Dr. Clipson summarized Bunas’s 

11 Pursuant to section 1001.36, subdivision (b)(1)(F) and its incorporation 

of section 1170.18’s definition of unreasonable risk of danger to public safety, 

in order to make a finding of dangerousness, a trial court must find that the 

defendant is likely to commit an offense defined in section 667, 

subd. (e)(2)(C), known colloquially as a “ ‘super strike.’ ”

12 While Bunas cited section 667.5, it appears likely that the intended 

citation was section 667, subdivision (e)(2)(C), which, as noted in footnote 11, 

ante, defines offenses colloquially known as “super strikes.”
13

family history, as recounted by Bunas. Dr. Clipson stated that this history 

included “emotional and physical abuse, as well as exposure to domestic 

violence between his parents.” Dr. Clipson also stated that Bunas admitted 

“a history of domestic violence in his relationships.” Dr. Clipson noted that 

Bunas’s criminal record included convictions for grand theft, driving under 

the influence, and shooting at an inhabited vehicle. Dr. Clipson further 

recounted that Bunas acknowledged having had a “[h]istory of dependency,” 

with respect to alcohol. In addition, Dr. Clipson stated that Bunas had been 

“[d]ependent,” on “[p]ain pills,” and that he had last used such pills in 2014.

Dr. Clipson also reviewed a 2016 psychological evaluation of Bunas 

drafted by Dr. Michel,13as well as various statements from Bunas’s family 

members, records pertaining to the charged offense, and psychiatric records 

from the jail. In addition, Dr. Clipson conducted an interview of Bunas, 

administered a mental status examination, and performed various 

psychological tests.

Dr. Clipson offered the following summary and conclusions:

“Mr. Bunas is a 44 year--old man who has experienced an 

unusually high number of advers[e] childhood events. His 

self--report in this regard is supported by statements by his 

sister as well as by statements made by a brother before 

this brother died. As someone who was physically and 

psychologically abused, who grew up in a home in which his 

father and older brother were molesting his sisters, and in 

which there was domestic violence, substance abuse and 

mental illness in his parents, [Bunas] was unable to 

experience anything near normal psychosocial

development. He developed symptoms of depression and

complex posttraumatic stress which interfered with his 

ability to form meaningful relationships, cope effectively 

13 As noted in part II.A.3, ante, the People lodged Dr. Michel’s evaluation 

with their opposition. We discuss Dr. Michel’s evaluation in part III.A.3.b, 

post.
14

with stress, or form and reach life goals. He became 

dependent on alcohol and pain medication as a way of 

coping with negative thoughts and feelings, but his abuse of 

these substances caused further problems in his social and 

occupational functioning. He has attempted sobriety, but 

has never adequately addressed his psychiatric difficulties 

other than by taking medication.

“[Bunas’s] behavior during the instant offense is similar to 

that from a prior offense in 2016. In both instances, his 

anger was triggered by feelings of shame, and he responded 

by becoming intoxicated on alcohol and acting out in a 

violent manner. In both instances, he said he wanted to 

kill the object of his anger, but inflicted relatively minor 

wounds despite having the means to cause severe injury or 

death. He grew up in a home plagued by domestic violence 

in which his father would sometimes say he wanted to kill 

his mother. It is quite likely that this statement reflects

more of an expression of anger than an actual desire to 

take someone else’s life, particularly since his behavior 

during both offenses reflects the release of anger more than 

an earnest attempt to kill someone.

“It is also noteworthy than in both instances, Mr. Bunas 

was taking Prozac. Prozac is an SSRI anti--depressant 

medication that can cause symptoms of manic--like 

behavior in some individuals who take this medication. 

Given the apparent fact that he has committed impulsive, 

violent acts that resulted in his arrest only twice, and both 

times he was taking Prozac, it is possible that his behavior 

was caused, at least in part, by his use of this substance.

This would have to be substantiated by a psychiatrist, 

however, as this lies outside my area of expertise as a 

psychologist.”

In addition to Dr. Clipson’s report, Bunas lodged a detective’s summary 

of a statement given by Bunas’s sister. In the statement, Bunas’s sister 

provided some background information pertaining to Bunas’s relationship 

with his girlfriend. The detective stated that Bunas’s sister had described 
15

the relationship as “toxic and codependent.” In addition, Bunas’s sister 

provided a description of her knowledge of the events surrounding the 

charged offense.

b. The People’s opposition

The People filed an opposition to Bunas’s motion in which they 

described the charged offenses,14 evidence of Bunas’s commission of various 

offenses in SCD264352, his criminal history, and his mental health history.

With respect to the section 1001.36 eligibility factors, the People 

maintained that Bunas’s mental health disorder had not played a significant 

role in the offenses, arguing that the “[d]efense has not provided any 

documentation from a mental health professional or other credible source 

that [Bunas] was experiencing symptoms or episodes at the time of the 

offenses.” The People also maintained that Bunas had not demonstrated how 

mental health treatment would affect the symptoms that contributed to his 

commission of the crimes.

The People further maintained that Bunas presented an unreasonable 

risk of danger to the public if treated in the community. They argued in part 

as follows:

“Here, [Bunas] clearly poses a significant risk to the 

community. [Bunas] was on probation for a violent offense 

when he punched his girlfriend’s friend in the face and 

when he attacked his girlfriend several times, threatened 

to kill her and ultimately tried to kill her with a machete. 

Attempted murder is one of the enumerated offenses that 

14 As noted in part II.A.1, ante, these offenses included the infliction of 

corporal injury on a spouse (§ 273.5, subd. (a)) with the use of a deadly or 

dangerous weapon (§ 12022, subd. (b)(1)) and infliction of great bodily injury 

under circumstances involving domestic violence (§ 12022.7, subd. (e)).

The People’s opposition contained photographs of Bunas’s girlfriend 

depicting the injuries that she suffered in the attack in this case, including 

numerous stitches to the top of her head.
16

would qualify as a ‘super strike.’[ ] Based on the facts of the 

current case, coupled with his recent history of violence, 

this court has grounds to and should find that [Bunas]

presents a danger to the community as contemplated by 

this statute and should thus be denied diversion.”

With their opposition, the People lodged the probation report from 

SCD264352. The probation report described the circumstances leading to the 

offense to which Bunas pled guilty—shooting at an inhabited vehicle, (§ 246) 

in part as follows:

“On 08/29/15, an SDPD officer responded . . . to investigate 

a report of someone shooting into an unoccupied vehicle 

and vandalizing property. [D.B.] stated he lived with 

family and roommate [J.U.] [S.B.] stated he parked his van 

in front of the residence and a bullet hole was discovered in 

the driver’s side door of the van the following day. He also 

noticed a message scribbled with a sharp object which read, 

‘Keep taking and you be next [sic].’ The front tires and rear 

tires were flat, two tires on [S.B.’s] truck were flat . . . .”

The probation report also provided a description of various counts that 

had been dismissed in the case that included the following:

“On 10/02/15, [S.B.] and [J.U.] were outside on their patio 

when James Bunas showed up unannounced. Bunas

walked up to [S.B.] holding a knife in one hand and a gun 

in the other. Bunas yelled at [S.B.], ‘You were talking shit 

on my children, I will kill you!’ Bunas pressed the gun 

against [S.B.’s] head and slashed his right ring finger with 

the knife. Bunas produced a metal baton and struck [S.B.]

on the left arm. Bunas struck [J.U.] in the head with the 

baton before he fled. [S.B.] sustained lacerations to his 

fingers and forearm and [J.U.] sustained a large laceration 

to his forehead.”

The probation report added that J.U. stated that he had known Bunas 

since high school and that J.U. saw that Bunas “had guns, an AK-47 and 
17

body armor.” In addition, while J.U. “never saw Bunas being violent towards 

anyone, [Bunas] appeared [to J.U. to be] paranoid from drug use.”

The People also lodged Dr. Michel’s 2016 psychological evaluation of 

Bunas. In his evaluation, Dr. Michel discussed many of the same issues as 

were outlined in Dr. Clipson’s evaluation, including Bunas’s abusive 

childhood as well as his criminal history and substance abuse problems. 

With respect to several of the charged offenses that were dismissed in 

SCD264352, the evaluation stated in part:

“Mr. Bunas admitted he had confronted the victims but 

that many of the details as contained in the record . . . were

not correct. He said he was never in possession of a gun, a 

pipe or a stick noting he had a knife in his pocket with the 

handle resembling brass knuckles in his pocket that he

produced during a verbal altercation with the victims. He 

said that one of the victims tried to hit him and he put up 

his hand while holding a knife for protection resulting in

one of the victims receiving a cut on his finger. [Bunas] did 

not explain how the victim received a laceration to his 

forehead or injury to his leg.”

The evaluation also stated, “Mr. Bunas candidly stated he had 

victimized the vehicle” forming the basis of Bunas’s conviction for shooting at 

inhabited vehicle in SCD264352. However, the evaluation noted that Bunas 

had not discussed “using a firearm.”

In a section of the report titled, “Summary and Recommendations,” 

Dr. Michel stated, “It is of obvious concern that [Bunas’s] pent-up and 

repressed feelings and affective state led to a combination of affective and

predatory behavior escalating from property damage to verbal confrontation 

to physical assault.”
18

c. The March 16, 2021 hearing on the motion for diversion

The trial court held a hearing on Bunas’s motion for diversion on 

March 16, 2021 at which the prosecutor, defense counsel and Bunas appeared 

by videoconference. At the outset of the hearing, defense counsel moved to 

continue the hearing so that Bunas could be “physically present, in court.” 

Defense counsel explained that the prison at which Bunas was incarcerated 

was “not transporting people currently [to court] . . . [but] I think that’s going 

to change fairly soon.”

The trial court stated that it would take a short recess before ruling on 

the continuance request, adding, “it took some doing to get us all here.”

When the court returned from the recess, after confirming that all of 

the participants were present at the videoconference, the court stated the 

following:

“Okay. Mr. [defense counsel] has just made a motion that 

this continue until Mr. Bunas can be transferred from state 

prison and be brought down to San Diego. We have no idea 

when those transfers will be made, how long that will take, 

what’s involved in that. But the court, based on what I’m 

intending to do today, does not feel like it is efficient or in 

anybody’s best interest to do that. The court feels that it 

would be a waste of time and resources given that the court 

is not holding a full hearing in this matter.

“So[,] what the court has done is -- in anticipation, and once 

I received this case, the court received the following mental 

health diversion request on behalf of Mr. Bunas pursuant 

to penal code section 1001.36. I have reviewed the moving 

papers, the response, all of the attachments, and the

original probation report.”

After defense counsel objected and again requested a continuance to 

permit Bunas to be physically present, the court stated:
19

“Mr. [defense counsel], if the court was going to hold a 

hearing, I agree with you. I would think that it would be in 

his best interest if he wanted to be here physically for the 

hearing, and you would then be physically available in the

courtroom with him with your witnesses. But the court is 

not going to hold a hearing. I am denying the motion based 

on the moving papers.”

Defense counsel responded, “Oh, okay. My apologies.”

The court then stated the following:

“And so what the court is finding, so I’m clear with all the 

parties, is I have reviewed all of the materials, I have 

reviewed all of the attachments, and I have reviewed the 

probation report. . . . [S]ection 1001.36 indicates that there 

is a potential for diversion if the defendant meets the 

eligibility requirements and the offense is suitable for 

diversion. What the court is saying is even if the mental 

illness was a significant factor in the charged offense, and I

am not indicating it was, I’m not making a finding that it 

was, especially given the other motives that he had in this 

case, but assuming that even if the court found all of the 

requirements, including that the mental illness was a

significant factor in the charged crimes, this court would

nonetheless exercise its discretion to conclude that the

charged offenses, though not statutorily disqualified, are 

not suitable for diversion.”

The court added:

“The general objectives of sentencing[ ] stated in

California Rule[s] of Court[, rule] 4.410 reflect the various 

and sometimes conflicting goals of our criminal justice 

system. Although mental health diversion might satisfy 

the objectives of encouraging the defendant to lead a lawabiding life and deterring him from future offenses, an 

assault, an unprovoked assault, on one victim, and a later 

attack on another victim with first a flashlight and then a 

machete where he splits open her head, again, unprovoked, 

threatening her all the while to kill her for ruining his life, 

and all in front of her children who are pleading for the 
20

man, the defendant, not to kill their mother, involves a use 

of force and fear on members of the public that justifies 

placing the goals of punishment and [deterrence] of others 

by demonstrating the consequences of such criminal 

behavior above the needs of the defendant’s, and for those 

reasons the defendant’s motion for mental health diversion 

is denied.”

Defense counsel again stated that he was objecting to the hearing being 

held without Bunas being physically present in court, and the trial court 

reaffirmed its rulings denying the request to continue and the motion for 

diversion. The court then asked whether either the prosecutor or defense 

counsel wanted to say anything further. As discussed in part III.A.4.c, post, 

defense counsel stated that his client’s presence was “the main issue.” 

Counsel did not raise any other issues.

4. Application

Bunas raises three arguments in support of his claim that the trial 

court abused its discretion in denying his motion for diversion. We consider 

each argument in turn.

a. The trial court did not err in purportedly failing to hold an 

eligibility hearing

Bunas contends that the trial court erred by “refusing to hold a

hearing to determine [his] eligibility for diversion.” (Boldface omitted.)

To begin with, we note that it is undisputed that the trial court held a 

hearing on March 16, 2021 on Bunas’s motion for diversion at which defense 

counsel, Bunas, and the prosecutor appeared by way of videoconference. 

During the hearing, the trial court stated that it had “reviewed the moving 

papers, the response, all of the attachments, and the original probation 

report.” Further, the trial court rendered a ruling on the motion at the 

hearing and entered a minute order denying the motion.
21

Notwithstanding that the trial court undisputedly held a hearing at 

which it denied Bunas’s motion for diversion, Bunas offers several arguments 

in support of his claim that the trial court failed to hold an eligibility hearing. 

None entitles him to reversal. First, Bunas argues that the “trial court flatly 

refused to hold an eligibility hearing.” (Emphasis omitted.) It is true that, on 

several occasions during the hearing on Bunas’s motion, the trial court stated 

that it would not be holding a “hearing.” Specifically, the court made the 

following statements at the March 16, 2021 hearing:

“The court feels that it would be a waste of time and 

resources [to wait until Bunas could be transported to 

court] given that the court is not holding a full hearing in 

this matter.”

“[I]f the court was going to hold a hearing, I agree with you

[defense counsel, that Bunas should be present in court]. I 

would think that it would be in his best interest if he 

wanted to be here physically for the hearing, and you would 

then be physically available in the courtroom with him with 

your witnesses. But the court is not going to hold a 

hearing.”

“And so given that the court is not holding a full hearing 

because the court is finding that the offense is not suitable 

for diversion, it does not appear to be in anybody’s best 

interest, and it seems to be an unnecessary use of court

time and resources to bring [Bunas] down to hear what the 

court just indicated for the record. There will not be a 

hearing based on the court’s finding of this unsuitability of

diversion based on the offense itself.”

However, when considered in context, it is clear that in making these 

statements, the court intended to indicate that it would not hold an 

evidentiary hearing on Bunas’s motion. With respect to two of the 

statements, the trial court stated that it would not hold “a full hearing,” 

(italics added) and with respect to the third statement, the court referred to a 
22

hearing at which “witnesses” would be present. Thus, we interpret each of 

the trial court’s statements quoted above as reflecting the trial court’s ruling 

that it would not hold an evidentiary hearing on Bunas’s motion for 

diversion.15 Accordingly, the court’s statements that it would not be holding 

a “hearing” do not provide a basis for reversal.

Bunas also argues that the trial court erred by ruling on his motion for 

diversion “without even allowing argument by counsel.” While the trial court 

could have been more solicitous in determining counsels’ desire to present 

argument, defense counsel appeared by videoconference at the hearing and 

could have requested the opportunity to present argument on the merits of 

the motion if he had desired to do so. Indeed, while defense counsel 

repeatedly moved to continue the hearing and raised his objection that Bunas 

be allowed to be present in court four times during the hearing, defense 

counsel never requested the opportunity to present argument on the merits of 

the motion. Under these circumstances, the trial court could have reasonably 

concluded that defense counsel sought only to continue the hearing in order 

to permit Bunas to be present in court and that defense counsel was willing 

to submit on his moving papers with respect to the merits of the motion.16

This conclusion is supported by the following colloquy from the end of March 

16, 2021 hearing:

15 In part III.A.4.c, post, we consider Bunas’s contention that the trial 

court erred in denying his motion without conducting an evidentiary hearing.

16 Bunas does not contend in either this appeal or in his petition for 

habeas corpus that defense counsel provided ineffective assistance in failing 

to present argument at the March 16, 2021 hearing.
23

“[The court]: Okay. Anything from the people?

“[The prosecutor]: No, your honor. I’d submit.

“[The court]: Okay. Anything further, [defense counsel]?

“[Defense counsel]: I mean, the court stated it wouldn’t be

in anybody’s best interest other than my client’s right to be

there personally present. So, I mean, that’s the main issue 

I have here.”17

Finally, in his reply brief, Bunas contends that the trial court erred in 

determining that the charged offenses were not suitable for mental health 

diversion, without first determining his eligibility for diversion. While 

Bunas does not dispute that a trial court may deny a request for mental 

health diversion on the ground that a defendant or offense is unsuitable for 

diversion even if the defendant is eligible for diversion, he argues that the 

trial court was “required to determine [his] eligibility for diversion before it 

considered his suitability for diversion.” (Italics added.) Yet, he points to 

nothing in the text of the statute that required the trial court to determine 

eligibility prior to determining suitability. Section 1001.36, subdivision 

(b)(3) provides that “[a]t any stage of the proceedings, the court may require 

the defendant to make a prima facie showing that the defendant will meet 

the minimum requirements of eligibility for diversion and that the defendant 

and the offense are suitable for diversion.”18 (Italics added.) Thus, the 

17 Bunas does not contend on appeal that the trial court erred in refusing 

to continue the hearing so that he could be physically present in the 

courtroom rather than appearing by video.

18 Section 1001.36, subdivision (b)(3) provides in its entirety:
24

defendant carries a prima facie burden with respect to both eligibility and

suitability, and there is nothing in the statute mandating the order in which 

the trial court is to consider these issues.

Further, there is nothing in the statute, or in any case law, that 

mandates that a trial court determine the defendant’s eligibility if it 

determines that the defendant or offense is not suitable for diversion. Since, 

as Bunas acknowledges, a trial court may deny a motion for diversion on the 

basis of either suitability or eligibility, if the court determines that the

defendant or offense is not suitable, it makes no difference whether the 

defendant is eligible. Given that the statute specifies that the “hearing on 

the prima facie showing shall be informal” (§ 1001.36, subd. (b)(3)) and does 

not mandate that a trial court make specific findings regarding eligibility, 

we see no reason why a trial court could not elect to decide the motion on 

suitability grounds, alone.19

“At any stage of the proceedings, the court may require the 

defendant to make a prima facie showing that the 

defendant will meet the minimum requirements of 

eligibility for diversion and that the defendant and the 

offense are suitable for diversion. The hearing on the 

prima facie showing shall be informal and may proceed on 

offers of proof, reliable hearsay, and argument of counsel. 

If a prima facie showing is not made, the court may 

summarily deny the request for diversion or grant any 

other relief as may be deemed appropriate.”

19 Bunas also suggests in his reply brief that the trial court was required 

to determine his eligibility for diversion prior to determining his suitability, 

based on the following language in our disposition in Bunas I:

“The matter is remanded to the trial court with directions 

to conduct a mental health diversion eligibility hearing 

under section 1001.36. If the court determines that Bunas 

qualifies for diversion, then the court may grant diversion.”
25

Finally, Bunas suggests that the trial court did not “consider[ ] 

evidence as to the eligibility factors,” and he contends that, as a result, the 

trial court was in “no position to summarily conclude that the defendant’s 

offenses rendered him “unsuitable” for diversion.” We are not persuaded. 

The court stated that it had considered Bunas’s motion as well as all of the 

supporting documents. Thus, the record supports the conclusion that the 

trial court considered all of the evidence that Bunas presented with his 

motion, including that which he contends demonstrated his eligibility for 

diversion.

In sum, we conclude that Bunas is not entitled to reversal on the 

ground that the trial court failed to hold an eligibility hearing on his motion 

for diversion.

b. The trial court did not err in relying solely on the 

circumstances of the charged offenses to deny the motion

for diversion

Bunas also contends that “[t]he trial court’s statement that even if [he] 

was eligible under the statute, it would deny diversion based solely ‘on the 

offense itself’ (5RT 808) constitutes an abuse of discretion.” Specifically, 

Bunas notes that section 1001.36, subdivision (b)(2) specifies a list of offenses 

that render a defendant statutorily ineligible for diversion, and he argues, 

In remanding for a “mental health diversion eligibility hearing,” we did 

not intend to say that the court was required to determine Bunas’s 

“eligibility” under the statute. Rather, our intention was to direct the court 

to determine whether mental health diversion was appropriate in this case. 

The hearing that the court held comports with our remand in that respect. 

Our disposition did not inject additional requirements for the trial court to 

follow in determining diversion beyond those found in the statute. For the 

reasons stated in the text, we conclude that the trial court complied with the 

statutory requirements.
26

“None of these enumerated offenses were charged in this case.”20 Bunas 

reasons, “Given this specific list of ineligible offenses, it follows that a motion 

for diversion should not be denied based solely on an offense which is not 

statutorily ineligible.” (Underscore omitted.)

The trial court did not deny Bunas’s motion because he was charged 

with, or convicted of, offenses that rendered him statutorily ineligible or 

unsuitable for diversion. Rather, it was the circumstances of Bunas’s 

commission of the charged offenses in this case that, in the court’s view, 

rendered him unsuitable for diversion. The court noted that the 

circumstances of the charged offenses included, “an unprovoked assault, on 

one victim, and a later attack on another victim with first a flashlight and 

then a machete where he splits open her head, again, unprovoked, 

threatening her all the while to kill her for ruining his life, and all in front of

20 Section 1001.36, subdivision (b)(2) provides:

“(2) A defendant may not be placed into a diversion 

program, pursuant to this section, for the following current 

charged offenses:

“(A) Murder or voluntary manslaughter.

“(B) An offense for which a person, if convicted, would be 

required to register pursuant to Section 290, except for a 

violation of Section 314.

“(C) Rape.

“(D) Lewd or lascivious act on a child under 14 years of 

age.

“(E) Assault with intent to commit rape, sodomy, or oral 

copulation, in violation of Section 220.

“(F) Commission of rape or sexual penetration in concert 

with another person, in violation of Section 264.1.

“(G) Continuous sexual abuse of a child, in violation of 

Section 288.5.

“(H) A violation of subdivision (b) or (c) of Section 

11418.”
27

her children who are pleading for the man, the defendant, not to kill their 

mother . . . .” It is clear from the trial court’s ruling that it was the 

circumstances of the charged offenses, rather than Bunas’s commission of 

certain specified offenses, that led the trial court to deny his motion for 

diversion.

Further, the fact that the Legislature enumerated a list of offenses that 

render a defendant ineligible as a matter of law for mental health diversion 

(§ 1001.36, subd. (b)(2)) does not demonstrate that the Legislature intended 

to preclude a trial court from relying solely on the circumstances of an offense 

or offenses in determining either eligibility or suitability for diversion. 

Section 1001.36 specifies that the trial court may consider the “the 

defendant’s violence and criminal history, the current charged offense, and 

any other factors that the court deems appropriate,” in determining 

eligibility. (§ 1001.36, subd. (b)(1)(F), italics added). While the statute does 

not specify the factors that a trial court may consider in determining 

suitability (see § 1001.36, subd. (b)(3)), it permits the court to determine 

whether a defendant has made “a prima facie showing . . . that the defendant 

and the offense are suitable for diversion,” (italics added) thereby evincing the 

Legislature’s intent that a trial court be permitted to rely on a consideration 

of the circumstances of the charged offense in determining suitability. 

Finally, there is nothing in section 1001.36, with respect to either eligibility 

or suitability, that 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.

Accordingly, we reject Bunas’s contention that the trial court erred in 

denying his motion for diversion “based solely on the offense.”
28

c. The trial court did not err in denying the motion for diversion 

without allowing an evidentiary hearing

Bunas claims that the trial court abused its discretion in denying the 

motion for diversion without allowing an evidentiary hearing. As an initial 

matter, Bunas contends that the trial court understood defense counsel’s 

request to continue the matter to allow Bunas to be present in person (rather 

than by videoconference) to be an “implicit request for an evidentiary 

hearing.” (Underscore omitted.) In support of this argument, Bunas notes 

that, in denying counsel’s request for a continuance, the trial court stated the 

following:

“If the court was going to hold a hearing[,] I agree with you.

I would think that it would be in his best interest if he 

wanted to be here physically for the hearing, and you would 

then be physically available in the courtroom with him with 

your witnesses. But the court is not going to hold a hearing. 

I am denying the motion based on the moving papers.” 

(Boldface omitted.)

We agree with Bunas that the trial court’s references in the above 

quotation to “a hearing,” should be understood to mean “an evidentiary 

hearing,” particularly in light of the court’s reference to “witnesses.” Thus, 

we agree with Bunas that the trial court understood defense counsel’s request 

for a continuance to be “an implicit request for an evidentiary hearing.” 

(Underscore omitted.) However, for the reasons discussed below, we reject 

Bunas’s contention that the trial court abused its discretion in denying this 

request.21

21 As noted in footnote 7, ante, while this appeal was pending, Bunas filed 

a separate petition for habeas corpus. In his petition, Bunas claims that, “in 

the event that this court holds, in the direct appeal, that defense counsel’s 

request for a continuance did not constitute a request for an evidentiary 

hearing,” (underscore omitted) and that Bunas therefore forfeited any right to 
29

First, while Bunas contends that “no published case has directly 

addressed whether a trial court is required to hold an evidentiary hearing in 

a mental health diversion proceeding upon request,” (italics added) it is clear 

that section 1001.36, subdivision (b)(3) authorizes a trial court to deny a 

motion for diversion without holding an evidentiary hearing if the court 

determines that a defendant has failed to make a prima facie showing in 

support of diversion. The statute expressly authorizes a trial court to 

“summarily deny the request for diversion,” if the defendant fails to carry his 

burden of making a prima facie showing in support of diversion at a hearing 

that “shall be informal and may proceed on offers of proof, reliable hearsay,

and argument of counsel.” (§ 1001.36, subd. (b)(3), italics added.) Thus, the 

trial court was not required to hold an evidentiary hearing merely upon 

defense counsel’s implied request for such a hearing.

Nor do we agree with Bunas’s argument that People v. McCallum 

(2020) 55 Cal.App.5th 202 (McCallum) “is analogous and strongly supports a 

finding that the court abused its discretion by refusing to allow an 

evidentiary hearing.” In McCallum, the Court of Appeal concluded that a 

trial court had abused its discretion in denying a recommendation from the 

Secretary of the Department of Corrections and Rehabilitation that the 

defendant’s sentence be recalled under former section 1170, subdivision 

(d)(1), “without first allowing [the defendant] to submit information necessary 

for the court to exercise its discretion whether to follow the recommendation.” 

(McCallum, supra, at p. 216, italics added.) The McCallum court explained 

an evidentiary hearing, “then that forfeiture is the result of ineffective

assistance of counsel.” We agree with Bunas that his counsel impliedly 

requested a continuance so that the court might hold an evidentiary hearing 

and we do not base our rejection of Bunas’s claim on forfeiture.

Accordingly, as we explain in a separate order filed today, we deny 

Bunas’s petition for habeas corpus on the ground that it is moot.
30

that after the trial court received the Secretary’s recommendation, defense 

counsel filed a motion for “ ‘a case management conference with the [c]ourt 

and [d]istrict [a]ttorney to discuss [the Department’s] recommendation and, if 

necessary, set a briefing and hearing schedule for the matter.’ ” (Id. at 

p. 209.) The McCallum court interpreted the “request as one seeking an 

opportunity to submit additional information relevant to the Secretary’s 

recommendation and briefing addressing why the trial court should follow 

the recommendation.” (Id. at p. 216, fn. 13.) The trial court never held a case 

management conference and declined to exercise its discretion to recall the 

defendant’s sentence in a minute order. (Id. at p. 209.) Neither the 

defendant nor his counsel was present in court at the time the court entered 

the minute order. (Ibid.) While the McCallum court concluded that the 

defendant was “[n]ot [e]ntitled to a [h]earing [u]nder [s]ection 1170, 

[s]ubdivision (d)(1),” (id. at p. 211, italics altered) to consider the Secretary’s 

recommendation, the court concluded that the trial court had abused its 

discretion by “simply . . . ignor[ing] [the defendant’s] request to provide input

on the Secretary’s recommendation.” (Id. at p. 216, italics added.)

Unlike in McCallum, in this case, the trial court permitted Bunas to 

file a brief and supporting documentation, including a psychological report. 

Further, the trial court held a hearing on Bunas’s motion for diversion at 

which the court stated that it had read and considered Bunas’s written 

submissions. In addition, Bunas’s counsel and Bunas were both present by 

way of videoconference at the hearing on the motion for diversion. Thus, 

unlike in McCallum, the trial court permitted Bunas to “provide input” 

(McCallum, 55 Cal.App.5th at p. 216) and “submit information,” (ibid.) on his 

request for diversion.
31

Further, the McCallum court concluded that the defendant was not

entitled to a hearing under the statutory scheme at issue in that case 

(McCallum, supra, 55 Cal.App.5th at p. 211) and the McCallum court had no 

occasion to consider the circumstances under which a defendant might be 

entitled to an evidentiary hearing to consider a request for mental health 

diversion under section 1001.36. For all of these reasons, McCallum does not 

support Bunas’s contention that the trial court erred in denying his motion 

without holding an evidentiary hearing.

Finally, we reject Bunas’s contention that the trial court abused its 

discretion in denying an evidentiary hearing because, according to Bunas, the 

court purportedly “deprived [him] of his right to present evidence regarding 

the nature and extent of his mental health issues, how they may have 

contributed to the offense, [Bunas’s] ability and willingness to comply with 

any treatment recommended by the court or medical providers, and so on.” 

As described above, section 1001.36, subdivision (b)(3) clearly empowers the 

trial court to adjudicate a motion for diversion without an evidentiary 

hearing if the trial court determines that a defendant has failed to make a

prima facie showing that he or she meets all of the threshold eligibility 

requirements and that the defendant and the offense are suitable for 

diversion.22

Accordingly, we conclude that the trial court did not abuse its 

discretion in denying the motion for diversion without allowing an 

evidentiary hearing.

22 Apart from the arguments addressed in the text, Bunas does not argue 

that the trial court abused its discretion in determining that he failed to 

carry his prima facie burden of demonstrating his eligibility and suitability 

for mental health diversion.
32

d. The trial court erred in relying on general objectives of 

sentencing in denying Bunas’s motion for diversion, but the 

error does not warrant reversal

Although not raised as a separately captioned argument,23 we agree 

with Bunas that the trial court erred in relying on general objectives of

sentencing in denying Bunas’s motion for diversion.

As noted in part III.A.3.c, ante, during one portion of the hearing on the 

motion for diversion, the trial court stated:

“The general objectives of sentencing[ ] stated in

California Rule[s] of Court[, rule] 4.410 reflect the various 

and sometimes conflicting goals of our criminal justice 

system. Although mental health diversion might satisfy 

the objectives of encouraging the defendant to lead a lawabiding life and deterring him from future offenses, an 

assault, an unprovoked assault, on one victim, and a later 

attack on another victim with first a flashlight and then a 

machete where he splits open her head, again, unprovoked, 

threatening her all the while to kill her for ruining his life, 

and all in front of her children who are pleading for the 

man, the defendant, not to kill their mother, involves a use 

of force and fear on members of the public that justifies 

placing the goals of punishment and [deterrence] of others 

by demonstrating the consequences of such criminal 

behavior above the needs of the defendant’s, and for those 

reasons the defendant’s motion for mental health diversion 

is denied.”

In our prior opinion in Bunas I, we explained that we were applying the 

remedy employed by the Court of Appeal in People v. Frahs (2018) 

27 Cal.App.5th 784, 796, namely “a conditional reversal of both the judgment 

and the convictions underlying the judgment, and a remand to permit the 

trial court to grant diversion and thereby avoid the imposition of a sentence.” 

(Italics altered; see also Frahs, supra, 9 Cal.5th at p. 639 [“by conditionally 

23 (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360; see fn. 4, ante.)
33

reversing defendant’s convictions and sentence for an eligibility hearing 

under section 1001.36, the case would be restored to its procedural posture 

before the jury verdict for purposes of evaluating defendant’s eligibility for 

pretrial mental health diversion” (italics added)].) We specifically noted that 

the trial court must “ ‘treat the matter as though [Bunas] had moved for 

pretrial diversion after the charges had been filed, but prior to their 

adjudication.’ ” (Bunas I, italics added.) Further, our disposition expressly 

stated that the “the convictions are conditionally reversed,” and we explained 

in our opinion, “[i]n using the term ‘convictions’ . . . we intend to refer to 

Bunas’s plea of guilty to the underlying charges, as well as his admissions to 

the enhancement allegations and the strike and serious felony allegations.” 

(Ibid.)

In short, our prior opinion made clear that the trial court was required 

to adjudicate Bunas’s motion for diversion in light of our conditional reversal 

of his conviction and plea of guilty. Until the court denied Bunas’s motion for 

diversion, his guilty plea remained reversed and the “objectives of 

sentencing[ ]” had no application to Bunas.24 Thus, it was not proper for the 

trial court to rely on the objectives of sentencing in denying Bunas’s motion 

for diversion.

24 We express no opinion with respect to whether a motion for diversion 

may be properly filed after a jury’s verdict or a plea of guilty in a case, unlike 

this one, in which the mental health diversion statute became effective prior 

to such verdict or guilty plea. The Supreme Court is currently considering, 

“What is the latest point at which a defendant’s request for mental health 

diversion is timely under Penal Code section 1001.36?” (People v. Braden

(2021) 63 Cal.App.5th 330, review granted and limiting issue to be briefed 

and argued July 14, 2021, S268925.) Nor do we address whether, in such a 

case, it would be appropriate for a trial court to consider the objectives of 

sentencing in ruling on the motion for diversion.
34

Nevertheless, we conclude that the trial court’s error does not warrant 

reversal. To begin with, “ ‘It is appellant’s burden on appeal to establish an 

abuse of discretion and prejudice.’ ” (People v. Pacheco (2022) 75 Cal.App.5th 

207, 213, italics added [discussing an appellant’s burden in seeking reversal 

of trial court’s denial of mental health diversion].) “This means reversal is 

appropriate ‘only if the reviewing court finds it reasonably probable the result 

would have been more favorable to the appealing party but for the error.’ ” 

(People v. Banner (2022) 77 Cal.App.5th 226, 235 [discussing standard of 

prejudice for claims of error pertaining to mental health diversion].) Bunas 

fails to present any argument that the trial court’s reference to sentencing 

objectives constituted prejudicial error.25

In any event, we conclude that the trial court’s reference to sentencing 

objectives in denying Bunas’s motion was harmless. To begin with, for the 

reasons stated in part III.A.4.b, ante, the trial court was free to rely on the 

evidence pertaining to the circumstances of the charged offenses in 

determining Bunas’s eligibility and suitability for mental health diversion. 

As described in part III.A.3, ante, that evidence undisputedly demonstrated 

that Bunas committed two different violent attacks on his girlfriend. During 

the attacks, he used weapons and threatened to kill her. Moreover, the 

undisputed evidence established that Bunas had punched another individual 

in the face earlier that day. At the March 16, 2021 hearing, the trial court 

referenced this evidence of Bunas’s violent conduct in denying his motion for 

mental health diversion. In addition, the record unequivocally establishes 

that, at the time Bunas committed these offenses, he was on probation in 

SCD264352 for a strike offense (§ 246) of shooting at an inhabited vehicle. 

25 Bunas’s brief does not contain a prejudice argument with respect to any 

of the arguments raised.
35

The trial court was also presented with evidence that Bunas had also 

committed two separate violent assaults with weapons with respect to the 

dismissed offenses in SCD264352.

In addition to the evidence of Bunas’s violent history, the trial court’s 

summary disposition of his motion for mental health diversion also supports 

the conclusion that the court’s reference to the objectives of sentencing did 

not constitute reversible error. (See § 1001.36, subd. (b)(3) [authorizing trial 

court to “summarily deny the request for diversion”].) At the March 16 

hearing, the court stated that, “even if the mental illness was a significant 

factor in the charged offense, and I am not indicating it was, I’m not making 

a finding that it was, especially given the other motives that he had in this 

case, but assuming that even if the court found all of the requirements, 

including that the mental illness was a significant factor in the charged 

crimes, this court would nonetheless exercise its discretion to conclude that 

the charged offenses, though not statutorily disqualified, are not suitable for 

diversion.” This statement supports the conclusion that the court did not 

intend to grant Bunas diversion, irrespective of any improper comments 

pertaining to sentencing objectives that the court made during the hearing.

In sum, given Bunas’s recent violent criminal history, as well as the 

trial court’s ruling at the hearing, it is not reasonably probable that Bunas 

would have obtained a more favorable result if the court had not erroneously 

referenced the objectives of sentencing in denying his motion for mental 

health diversion. Accordingly, we conclude that, while the trial court erred in 

relying on general objectives of sentencing in denying Bunas’s motion for 

diversion, the error does not warrant reversal.
36

B. The trial court erred in failing to resentence Bunas

Bunas claims that the trial court failed to resentence him in accordance 

with our opinion in Bunas I. The People concede the error. We agree that 

the trial court erred in failing to resentence Bunas in accordance with 

Bunas I.

In Bunas I, we noted that Bunas argued: “[I]n the event that the trial 

court does not grant him mental health diversion . . . the trial court should be 

ordered to resentence him. Bunas contends that a full resentencing is 

required given the lack of clarity with respect to the court’s intended 

judgment.” (Bunas I.)

We agreed with Bunas’s contention, reasoning:

“At the November 2018 hearing, the trial court imposed a 

sentence in SCD272661 that was four months longer than 

the sentence that it imposed in this case in June 2018. 

However, given that the court imposed this sentence while 

under a misimpression about a material fact concerning

Bunas’s aggregate sentence, we cannot be certain as to the 

aggregate sentence that the court intended to impose in 

both cases. If we were to restrict the trial court on remand 

to clarifying whether it intended that the sentence in the 

probation case SCD264352 run concurrently with, or 

instead, consecutively to the sentence imposed in 

SCD272661,[26] we would be limiting the court to imposing 

an aggregate sentence that might not comport with the 

trial court’s intended aggregate sentence in the two cases. 

We therefore conclude that the proper remedy is to allow 

for a full resentencing at which time the trial court may 

consider the full range of sentencing options available to it 

in both cases.” (Bunas I.)

26 We rejected the People’s suggestion for such a remand order in Bunas I. 

Instead, we directed the court to conduct a full resentencing hearing in both 

SCD272661 and SCD264352.
37

On remand from Bunas I, the trial court failed to resentence Bunas. 

Accordingly, we conclude that the matter must again be remanded to the trial 

court with directions to conduct a full resentencing in SCD272661 and 

SCD264352 in accordance with our directions in Bunas I.

IV.

DISPOSITION

The trial court’s March 16, 2021 order denying Bunas’s motion for 

diversion is affirmed. The court’s March 16, 2021 order is reversed insofar as 

the trial court failed to resentence Bunas in accordance with Bunas I. The 

matter is remanded to the trial court with directions to conduct a full 

resentencing in SCD272661 and SCD264352. At the conclusion of 

resentencing, the court shall order the preparation of a corrected abstract of 

judgment and shall forward the corrected abstract to the Department of 

Corrections and Rehabilitation.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

HALLER, J.