Filed 1/9/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JEANETTE SARMIENTO,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D082443

 

 (San Diego County

 Super. Ct. No. SCD297592)

THE PEOPLE,

Real Party in Interest.

PETITION for writ of mandate from an order of the Superior Court of 

San Diego County, Dwayne K. Moring, Judge. Petition granted.

Katherine Braner, Chief Deputy Public Defender and Emily RoseWeber, Deputy Public Defender for Petitioner.

Summer Stephan, District Attorney, Linh Lam, Chief Deputy District 

Attorney, Valerie Ryan and Sara Staninger, Deputy District Attorneys, for 

Real Party in Interest.

No appearance by Respondent.
2

In this case, defendant Jeanette Sarmiento requested mental health 

diversion (Pen. Code, § 1001.361) 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 saying, “Let me get the money.” The 

store employees did not give her any money. Instead, they called 911. 

According to one of the employees, “[I]t looked like she wanted us to call the 

police.” 

An unrebutted psychiatric evaluation submitted in support of 

Sarmiento’s request for diversion diagnosed her as suffering from 

posttraumatic stress disorder (PTSD), major depressive disorder, and 

stimulant use disorder specific to methamphetamine. The PTSD likely 

resulted from years of sexual trauma she suffered as a child and adolescent. 

The parties agree that Sarmiento never received treatment for her 

foundational mental health diagnoses of PTSD and depression, and her 

substance abuse largely served as a form of self-medication for those 

underlying conditions. Although she successfully completed two substance 

abuse treatment programs—one in 2013 resulted in years of sobriety—the 

failure to address the foundational mental health issues ultimately led to 

relapse and a resumption of criminal behavior.

Although it found that Sarmiento met many of the requirements for 

diversion, the trial court denied her request based on two principal concerns. 

First and primarily, it found that “her inability to remain drug-free after 

prior participation in [substance abuse] treatment” indicated “she would not 

respond well to mental health treatment,” which accordingly would not “meet 

[her] specialized mental health treatment needs.” Second, although the court 

1 All statutory references are to the Penal Code unless otherwise 

indicated.
3

did not find that Sarmiento was likely to commit a super strike offense as 

required by the statute’s definition of dangerousness, it nonetheless

concluded that Sarmiento “pose[d] an unreasonable risk of danger to the 

public,” and this was an additional factor in the court’s decision to deny 

diversion. 

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. As with any 

principled exercise of discretion, the court must utilize the appropriate

criteria consistent with the principles and purposes of the governing law, only 

drawing conclusions supported by substantial evidence. Applying these 

principles, neither of the reasons relied on by the trial court provide a proper 

basis to deny diversion. Accordingly, we issue the writ and direct the court to 

grant the request for mental health diversion. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Mental Health History

Sarmiento was raised by her mother and stepfather. Between the ages 

of five and eight, along with a group of other children, she was sexually

abused by her 30-year-old stepbrother on a repeated basis. Sarmiento did not 

report the abuse to anyone until she was an adult.

Sarmiento’s stepfather, who she was close to, died of a heart attack 

when she was 13. She was hospitalized and saw a psychologist after she 

threatened to commit suicide by jumping off a bridge. At about the same 

time, she began using methamphetamine, later selling it with her brother 

Oscar. A few years later, while still in high school, she was gang raped at a 

party. 
4

In 2013, after being arrested for selling drugs, Sarmiento completed a 

120-day residential substance abuse treatment program. She maintained her 

sobriety for nearly six years, but relapsed in 2019 as a result of an unhealthy 

romantic relationship with a meth addict who used in her presence and 

encouraged her to join him. This led to four hospitalizations in that year and 

two robbery convictions in 2020. While incarcerated she completed 

additional courses on substance abuse, but received no treatment for her 

primary mental health diagnoses. She appeared to relapse again shortly 

before the attempted robbery charge in this case. 

Sarmiento’s parole agent supervised her before her latest arrest, and 

was surprised that it occurred. She characterized Sarmiento as a “ ‘model 

parolee’ ” who followed the rules and maintained contact as required. She 

noted, however, that “drug use exacerbates [Sarmiento’s] mental health 

issues.” 

Following her arrest, Sarmiento was the subject of a psychological 

evaluation by Dr. Cynthia Boyd. Boyd’s diagnosis confirmed that Sarmiento 

suffered from two mental disorders—major depressive disorder and PTSD. 

Boyd noted that while these were consistent with prior diagnoses, in the past 

“the underlaying cause of her mental illness was not explored.” She 

concluded that Sarmiento would require, among other types of intervention,

“trauma-focused psychotherapy for symptoms of untreated, chronic PTSD.” 

In Boyd’s opinion, Sarmiento could be safely treated in the community and 

the “symptoms of [her] mental disorder motivating the criminal behavior 

would respond to mental health treatment.” 

B. Request for Mental Health Diversion

In advance of the preliminary hearing, Sarmiento filed a request for 

mental health diversion under section 1001.36. In support, she attached Dr. 
5

Boyd’s evaluation and medical records, as well as the statements of various 

witnesses including family members, her employer, and her parole agent. 

Boyd offered specific opinions with supporting reasons that (1) the symptoms 

of Sarmiento’s mental disorders motivating her criminal behavior would 

respond to treatment, and (2) she would not pose an unreasonable risk to 

public safety if treated in the community. Sarmiento also included a report 

indicating she had been approved for a County-funded residential substance 

abuse treatment program. She proposed linking substance abuse treatment 

in a residential setting with County-funded outpatient mental health 

treatment that would provide case management, medication management, 

and individual therapy. The People opposed with argument but no additional 

evidence. 

At the hearing on the motion in May 2023, Sarmiento’s counsel 

emphasized the necessity and importance of providing mental health 

treatment, specifically therapy and psychiatric medication, for her two 

primary diagnoses—PTSD and major depressive disorder. He noted that her 

past attempts at substance abuse treatment had achieved significant success, 

but the focus on substance abuse was “the only thing that she has done.” 

“The part that has been missing,” he said, “is seeing a psychotherapist and 

taking medication” to address her mental health issues. Counsel also 

provided additional specifics regarding the treatment plan, explaining that 

the residential substance abuse treatment program would be for a minimum 

of three months and that the outpatient mental health services would include 

psychiatric medication.2 

2 Counsel added, “The only thing I don’t know is where the [psychiatric] 

services will occur.” The court acknowledged that counsel had described the 

planned services “in a more elaborate and detailed manner than what your 

paperwork shows.” 
6

In response, the People questioned Sarmiento’s eligibility for diversion, 

taking issue with the court’s tentative conclusion that her mental disorders 

played a significant role in the commission of the charged crime. (See 

§ 1001.36, subd. (b)(2).) As to her suitability for the program, the People 

expressly conceded that Sarmiento met two of the four requirements: (1) she 

had presented the opinion of a qualified mental health expert (Dr. Boyd) 

indicating that the symptoms of her mental health disorders would respond 

to treatment, and (2) she had agreed to waive her speedy trial rights. (See 

id., subd. (c)(1) & (2).) Instead, they argued that notwithstanding Dr. Boyd’s 

evaluation, Sarmiento had failed to establish her symptoms would respond to 

treatment.3 They also contended the mental health treatment plan proposed 

for Sarmiento was insufficiently specific to demonstrate that it would meet 

her specialized needs. (See § 1001.36, subd. (f)(1)(A)(i).) Lastly, they 

maintained she would pose an unreasonable risk to public safety if treated in 

the community. (See id., subd. (c)(4).)

Ruling from the bench, the court denied the request for diversion. 

Referring to the statutory criteria, it began by expressly finding that 

Sarmiento met both of the eligibility standards. She “suffers from a 

qualifying mental disorder” and “her mental disorders were significant 

factors in the commission of the offense.” As for suitability, the judge 

accepted that she had consented to diversion and agreed to comply with her 

treatment plan. 

But the court nonetheless found Sarmiento was not suitable for 

diversion due to several factors. First, it concluded that Sarmiento’s 

3 Admittedly, there is some inconsistency between the People’s 

opposition papers and their statement at the hearing that they “do not 

dispute . . . that her mental disorder would respond to treatment.” 
7

“inability to remain drug-free after prior participation in treatment” 

indicated “she would not respond well to mental health treatment.” The 

judge believed her past failures in drug treatment predicted more of the same

if diversion were authorized. In the judge’s view, “past performance is the 

best indicator of future performance and success.” 

On a related point, the court expressed doubt that the proposed 

treatment program “will meet the specialized treatment needs of the 

defendant.” Its reasoning sounded a familiar refrain: “If she didn’t have the 

prior history of committing this conduct, I think we’d be in a different boat. 

Having previously received treatment for the substance abuse, and having 

been punished criminally for these offenses and then to continue with this 

conduct, I don’t see the mental health diversion as appropriate.” 

Finally, the trial court acknowledged that section 1001.36 expressly 

defines “unreasonable risk of danger to public safety” by reference to section 

1170.18, subdivision (c). Such a risk exists only if the evidence indicates it is 

likely the defendant will commit a so-called “super strike” violent felony. 

(See § 667, subd. (e)(2)(C)(iv); see, e.g., People v. Williams (2021) 63 

Cal.App.5th 990, 1001 (Williams).) Although the court did not make such a 

finding, the judge referenced his “residual” discretion under the statute in 

concluding that diversion should be denied because Sarmiento “pose[d] an 

unreasonable risk of danger to the public.” 

On Sarmiento’s petition for writ of mandate, we issued an order to 

show cause.

DISCUSSION

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

pretrial diversion for criminal defendants with diagnosed mental health 

disorders. (Stats. 2018, ch. 34 (Assem. Bill No. 1810); Stats. 2018, ch. 1005 
8

(Sen. Bill No. 215).) Diversion allows for the suspension of criminal 

proceedings and potential dismissal of charges upon successful completion of 

mental health treatment. (See People v. Frahs (2020) 9 Cal.5th 618, 631.) 

The express purpose of this legislation was to “[i]ncrease[ ] diversion of [such] 

individuals” (§ 1001.35, subd. (a)) based on concerns that “incarceration only 

serves to aggravate [their] preexisting conditions and does little to deter 

future lawlessness.” (Sen. Com. on Public Safety, Analysis of Sen. Bill 

No. 215 (2017–2018 Reg. Sess.) as amended Jan. 3, 2018, p. 5.) 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. 

(See Stats. 2022, ch. 735 (Sen. Bill No. 1223); People v. Whitmill (2022) 86 

Cal.App.5th 1138, 1149 (Whitmill) [“The Legislature intended the mental 

health diversion program to apply as broadly as possible.”].)

A. The Mental Health Diversion Process: An Overview

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 specified in the statute. (§ 1001.36, subds. 

(b) & (c).) 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. (Id., subd. (b).) 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, subdivision (e)(2)(C)(iv). (§ 1001.36, subd. (c).) 
9

In successive versions of section 1001.36, the Legislature has provided 

increasingly detailed guidance for deciding whether a defendant qualifies for 

diversion. Initially, the statute listed six criteria that the defendant had to 

meet. The first two were phrased as requiring the court to be “satisfied” that 

(1) the defendant suffered from a recognized mental disorder, and (2) the 

disorder was a “significant factor in the commission of the charged offense.” 

(Former § 1001.36, subd. (b)(1)(A) & (B); Stats. 2018, ch. 1005, § 1.) 

Effective January 1, 2023, however, these first two requirements were 

recharacterized as “eligibility” criteria. More substantively, a defendant’s 

eligibility no longer turned on findings to the court’s “satisfaction.” Rather, 

defendants are generally eligible if they “ha[ve] been diagnosed” with a 

recognized mental disorder. (§ 1001.36, subd. (b)(1).) 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.” (Id., subd. (b)(2).) 

The amended statute groups the remaining four criteria in section 

1001.36, subdivision (c) to assess the defendant’s “suitability” for diversion. 

As with the “diagnosis” eligibility requirement, the first of these relies on 

input from a medical professional, in this instance “the opinion of a qualified 

mental health expert,” that the symptoms of defendant’s mental disorder 

“would respond to mental health treatment.” (Id., subd. (c)(1).) The second 

and third requirements are satisfied if the defendant agrees to waive his or 

her speedy trial rights and to comply with treatment as a condition of 

diversion. (Id., subd. (c)(2)–(3).) Only the fourth requirement necessitates 
10

a trial court finding—that the defendant “will not pose an unreasonable risk 

of danger to public safety . . . if treated in the community.” (Id., subd. (c)(4).) 

Even here, however, the Legislature has narrowly defined the applicable 

standard. Borrowing from sections 1170.18, subdivision (c) and 667, 

subdivision (e)(2)(C)(iv), an “ ‘unreasonable risk . . . to public safety’ ” means 

a likelihood that the defendant will commit one of the violent felonies 

specifically enumerated in the statute.4 (Williams, supra, 63 Cal.App.5th at 

p. 1001; People v. Moine (2021) 62 Cal.App.5th 440, 450 (Moine) [“risk of 

danger is narrowly confined to the likelihood the defendant will commit a 

limited subset of violent felonies”].)

Assuming the defendant is both eligible and suitable, the trial court 

must also be satisfied “that the recommended inpatient or outpatient 

program of mental health treatment will meet the specialized mental health 

treatment needs of the defendant.” (§ 1001.36, subd. (f)(1)(A)(i); see People v. 

Gerson (2022) 80 Cal.App.5th 1067, 1079 (Gerson).) This is not an additional 

eligibility or suitability requirement the defendant must meet. Rather, 

subdivision (f)(1) of section 1001.36 read as a whole appears to contemplate 

an ongoing assessment to assure that defendants will receive appropriate 

treatment for their particular conditions as part of the diversion program.5 

4 As listed in section 667, subdivision (e)(2)(C)(iv), these felonies include 

several sex offenses, any homicide offense, solicitation to commit murder, 

assault with a machinegun on a police officer or firefighter, possession of a 

weapon of mass destruction, or any serious or violent felony punishable by 

life imprisonment or death. 

5 Subdivision (f)(1)(A)(ii) of section 1001.36 requires agreement of the 

proposed treatment entity to accept responsibility for treating the defendant. 

Subdivision (f)(1)(A)(iii) allows a county mental health agency that believes it 

is unable to provide proper services to submit a written declaration to that 

effect.
11

Finally, 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. (Gerson, supra, 80 Cal.App.5th at p. 1079; see 

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

But this “residual” discretion must be exercised “ ‘consistent with the 

principles and purpose of the governing law.’ ” (Qualkinbush, at p. 891, 

quoting Wade v. Superior Court (2019) 33 Cal.App.5th 694, 710; Williams, 

supra, 63 Cal.App.5th at p. 1001 [“ ‘scope of discretion always resides in the 

particular law being applied’ ”].) 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. 

(Qualkinbush, at pp. 891–892.)

B. Because Sarmiento never previously received treatment for her 

underlying mental disorders, there was insufficient evidence to show that 

her symptoms would not respond to treatment.

The trial court’s principal reason for denying diversion was its 

assessment that Sarmiento had failed in two prior attempts at drug 

treatment, as evidenced by the fact that she relapsed and thereafter resumed 

her criminal behavior. The court believed this indicated her condition would 

not likely respond successfully to a third attempt at treatment. In the judge’s 

opinion, her “past performance”—specifically her “inability to remain drug 

free”—did not justify another try. 

Initially we note that relapse following drug treatment does not 

necessarily mean that the participant “failed” or that treatment was 

“unsuccessful.” Scientific research on brain function has now discredited the 
12

once common misconception that people suffering from a substance abuse 

disorder simply lack sufficient willpower or moral principles. According to 

the National Institute on Drug Addiction (NIDA), part of the National 

Institute of Health (NIH), drug addiction is a complex disease like many 

other chronic health conditions and progress is rarely linear.6 Significantly, 

“people in recovery from drug use disorders are at increased risk for 

returning to drug use even after years of not taking the drug. [¶] 

It’s common for a person to relapse, but relapse doesn’t mean that treatment 

doesn’t work” (italics added).7

More importantly, the undisputed evidence in this case indicates 

Sarmiento never received any coordinated treatment for her two primary 

mental health diagnoses—PTSD and major depressive disorder.8 It appears 

the trial court failed to appreciate the distinction between different types of 

treatment, conflating substance abuse recovery with therapy and medication 

directed at PTSD and depression. Even if her prior attempts at substance 

abuse treatment could be characterized as unsuccessful, Dr. Boyd’s report

6 NIDA/NIH, Understanding Drug Use and Addiction DrugFacts, 

<https://nida.nih.gov/publications/drugfacts/understanding-drug-useaddiction> (as of Jan. 9, 2024), archived at <https://perma.cc/67A9-YNP2> 

(hereafter NIDA/NIH fact sheet).

7 The NIDA/NIH fact sheet explains that like other chronic health 

conditions, treatment for substance abuse disorders “should be ongoing and 

should be adjusted based on how the patient responds.” 

8 We have accepted Dr. Boyd’s conclusion that Sarmiento’s PTSD is 

“chronic” and “untreated,” as well as the People’s express concession that “the 

record does not contain evidence that Petitioner received prior sustained 

treatment for [PTSD] or depression.” We do not view references in Dr. Boyd’s 

report to prior mental health diagnoses or her current medications as in any 

way inconsistent with this conclusion or concession. Nor can we speculate on 

why Sarmiento was prescribed any medications she is currently taking.
13

makes clear that Sarmiento was unable to maintain her sobriety because her 

underlying mental health conditions—the ones that drove her substance 

abuse as a means of self-medication—were never addressed. 

This point was emphasized by defense counsel in oral argument on the 

motion. The treatment regimen that diversion would make possible 

expressly linked residential substance abuse treatment with psychiatric 

medication and psychotherapy addressing the untreated PTSD and 

depression. Boyd offered her conclusion that the symptoms of Sarmiento’s 

mental health disorders would respond to the proposed treatment plan; the 

People offered no contrary expert opinion. On this record, where her mental 

health disorders were never treated comprehensively, there is insufficient 

evidence to support the trial court’s conclusion that Sarmiento’s symptoms 

would not respond to treatment.

C. The court’s concern with Sarmiento’s lack of success in past attempts at 

substance abuse treatment does not support a finding that the 

recommended treatment would not meet her “specialized needs.”

The trial court employed similar reasoning in support of its conclusion 

that the recommended treatment plan would not meet Sarmiento’s 

“specialized mental health treatment needs.” (§ 1001.36, subd. (f)(1)(A)(i).) 

Reprising his principal criticism of Sarmiento, the judge focused on her 

inability to remain law-abiding after receiving substance abuse treatment. 

“[W]e’d be in a different boat,” he candidly acknowledged, if Sarmiento “didn’t 

have the prior history of committing this conduct,” of “having previously 

received treatment for the substance abuse,” “of having been punished 

criminally for these offenses,” and then reoffending. 

To the extent these criticisms merely reiterate the trial court’s concern 

that Sarmiento was not appropriate for diversion because her prior attempts 

at substance abuse treatment were unsuccessful, they are subject to the same 
14

objection as the court’s conclusion that her symptoms would not respond to 

treatment. Sarmiento’s supposed lack of success in drug treatment does not 

rationally support a conclusion that a comprehensive program of treatment 

for her underlying mental health diagnoses of PTSD and depression, coupled 

with substance abuse treatment, would not yield different (and more positive) 

results.

But there is an additional flaw in the court’s analysis. As we have 

already explained, subdivision (f)(1) of section 1001.36 does not create an 

additional eligibility or suitability requirement for the defendant. The focus 

of this provision is on the program of treatment, providing reasonable 

assurance that it will address the defendant’s particular mental health 

needs. Under this provision, a court might reject diversion if it concluded 

that the proposed treatment services did not target or could not effectively 

address the defendant’s particular diagnosis.9 Here, the alleged failure of 

prior drug treatment programs says nothing about any inadequacy of the 

proposed plan to address Sarmiento’s mental health needs. Indeed, 

Dr. Boyd’s evaluation specifically explains why the current proposal is 

significantly different from Sarmiento’s prior substance abuse-only treatment 

efforts that were not linked to monitored psychiatric medication and therapy

addressing her PTSD and depression. Again, we conclude there is no 

substantial evidence to support the court’s conclusion that the recommended 

treatment program will not meet Sarmiento’s specialized mental health 

treatment needs.

9 For instance, the court might be legitimately concerned if the 

evaluation of the defendant suggested the need for psychiatric medication 

and the recommended program did not provide psychiatric services.
15

D. The trial court misapplied the statutory criteria in deciding that residual 

concerns for public safety not amounting to a likelihood that Sarmiento 

will commit a super strike offense can justify the denial of diversion.

Apart from concerns with what it believed were her failures following 

drug treatment, the court also relied on its residual discretion under the 

diversion statute to conclude that Sarmiento “pose[d] an unreasonable risk to 

public safety.” It acknowledged that an “unreasonable risk of danger to 

public safety” is expressly defined in the statute to mean a likelihood that if 

the defendant is granted diversion, she will commit one of the “super strike” 

violent felonies enumerated in section 667, subdivision (e)(2)(C)(iv). Yet it 

made no finding of such a likelihood, impliedly acknowledging there was 

none. Rather, the judge referenced his “residual” discretion under the 

statute: “But this is a statute that is discretionary and is up to the discretion 

of the court.” On that basis and without any further analysis, he concluded 

that “this behavior does pose an unreasonable risk of danger to the public.” 

As we explained in Qualkinbush, supra, 79 Cal.App.5th 879, even after 

a defendant makes a prima facie case that she meets all the qualifications to 

be considered for diversion—as Sarmiento did here—the court “may still 

exercise its discretion to deny mental health diversion.” (Id. at p. 888; 

Gerson, supra, 80 Cal.App.5th at p. 1080.) Necessarily, however, this 

residual discretion must still be exercised consistent with express statutory 

requirements and the underlying purposes of mental health diversion, as well 

as an understanding of the findings that prompted the Legislature to create 

the diversion program. So 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, subdivision (c)(4). 
16

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. (Moine, supra, 62 Cal.App.5th at p. 450 [“the risk of danger 

is narrowly confined to the likelihood the defendant will commit a limited 

subset of violent felonies”].)

In Whitmill, supra, 86 Cal.App.5th 1138 (Whitmill), our colleagues in 

the Second Appellate District, Division Eight recently reached a conclusion 

fully consistent with this principle. Indeed, the background facts of Whitmill 

are quite similar. The defendant was diagnosed with military sexual trauma 

and PTSD. (86 Cal.App.5th at p. 1144.) A psychological evaluation 

concluded that he had “ ‘severe mental illlness’ further complicated by 

substance abuse.” (Ibid.) The evaluating psychologist proposed a dualdiagnosis treatment program that included antidepressant medication, 

psychological therapy, and substance abuse treatment. (Id. at p. 1145.) 

In the psychologist’s opinion, this treatment plan would allow the defendant 

to be safely treated in the community. (Ibid.) The prosecution opposed the 

request but submitted no contrary expert testimony. (Ibid.)

On this record, the trial court in Whitmill denied the defendant’s 

request for mental health diversion, relying on evidence that in conjunction 

with the current charges, the defendant threatened to kill his girlfriend after 

firing a gun in the air. Although he then threw the gun away and 

immediately surrendered to a deputy without incident, the court nonetheless 

concluded that defendant’s conduct created an unacceptable risk of 

dangerousness. (86 Cal.App.5th at p. 1146.)

The Court of Appeal disagreed and reversed with directions to grant 

diversion. Acknowledging that the decision to offer diversion was committed 

to the trial court’s sound discretion and noting this discretion applied even 
17

where the defendant facially met all the threshold statutory requirements 

(86 Cal.App.5th at p. 1149), Whitmill emphasized the need for the court to 

consider “the primary purposes of the mental health diversion statute,” which 

included “keep[ing] people with mental disorders from entering and 

reentering the criminal justice system while protecting public safety.” (Ibid.) 

It further noted the Legislature’s intent that the diversion program “apply as 

broadly as possible.” (Ibid.)

The sole issue in the case was whether the defendant would pose “an 

unreasonable risk of danger to public safety . . . if treated in the community.” 

(Whitmill, supra, 86 Cal.App.5th at p. 1150.) In other words, diversion was 

properly denied only if the defendant was “too dangerous to be treated in the 

community because he would commit a new violent super strike.” (Ibid.) 

Considering the defendant’s lack of a prior record of violence and the totality 

of circumstances in the case, the appellate court concluded there was “no 

substantial evidence to support the trial court’s finding that appellant posed 

an unreasonable risk of committing a super strike if treated in the 

community.” (Id. at p. 1156.) The trial judge likewise applied an incorrect 

standard by “fail[ing] to consider the primary purposes of mental health 

diversion as set forth in section 1001.35.” (Whitmill, at p. 1156.) As a 

concurring justice added, granting diversion was “the result the legislature 

intends courts to reach under these circumstances.” (Id. at p. 1156, conc. opn. 

of Harutunian, J.) 

Similarly here, there is no substantial evidence to support a conclusion 

that Sarmiento was likely to commit a super strike offense. Indeed, the 

charged offense in this case involved no evidence of a weapon or threat of 

violence. Nor could the court invoke its “residual” discretion to create a 

definition of “risk to public safety” inconsistent with the statutory definition. 
18

“By requiring an assessment of whether the defendant ‘will commit a new 

violent felony’ within the meaning of section 667, subdivision (e)(2)(C)(iv), a 

trial court necessarily must find the defendant is ‘likely to commit a superstrike offense.’ ” (Moine, supra, 62 Cal.App.5th at p. 450, quoting People v. 

Hoffman (2015) 241 Cal.App.4th 1304, 1310.) There is no basis for such a 

conclusion here.

Expanding the reasons to deny diversion would also be inconsistent 

with the legislative purposes sought to be achieved in enacting sections

1001.35 and 1001.36. In both the original legislation and subsequent 

amendments, the Legislature has made it abundantly clear that for persons 

with diagnosed disorders, mental health treatment provides the best strategy 

for breaking the cycle of criminal recidivism. (Whitmill, supra, 86 

Cal.App.5th at p. 1149 [“stated purpose of this legislation is to keep people 

with mental disorders from entering and reentering the criminal justice 

system while protecting public safety”].) Reducing crime makes our 

communities safer, to be sure, but successful treatment also improves our 

society in a myriad of other ways by helping those with mental disorders 

become more productive citizens, to the benefit of their families, their 

employers, and the community at large. The trial court’s decision here failed 

to follow the Legislature’s direction to focus less on the flaws in Sarmiento’s 

past and more on the promise of her future and that of her community.

We are sensitive to and respect the concerns of our dissenting colleague 

regarding the importance of trial court discretion. Collectively we served on 

the superior court for more than 30 years. But where to draw the line 

between the proper and improper exercise of discretion is always a matter of 

degree and context. And while the majority and dissenting opinions here 

surely reflect philosophical differences regarding mental health diversion, the 
19

respective views of appellate judges on the topic are not the determining 

factor. Rather, the scope of trial court discretion in applying the statute must 

be informed by an appreciation for the crucial role of the Legislature in 

setting criminal justice policy.

Relying on advances in psychology and neuroscience, the Legislature 

has made it abundantly clear that for defendants whose criminal behavior is 

a function of their diagnosed mental health disorders, treatment is the much 

preferred option so that diversion should “apply as broadly as possible.” 

(Whitmill, supra, 86 Cal.App.5th at p. 1149.) And we cannot ignore that from 

the legislative perspective, a defendant like Sarmiento is the poster child for 

mental health diversion. Although she plainly never asked for the 

psychological conditions that challenge her, the question is not whether 

Sarmiento “deserved” the opportunity for treatment. The Legislature has 

determined that in most cases, the community will be safer if defendants like 

Sarmiento receive mental health treatment so that they will pose fewer risks 

to the community both now and in the future. The trial court’s role is to 

determine whether a narrow range of factors warrant making this specific 

case an exception. None of the court’s specified reasons here justify the 

decision to deny Sarmiento mental health diversion.
20

DISPOSITION

A peremptory writ of mandate shall issue directing the superior court 

to vacate its order denying mental health diversion and enter a new order 

granting her request. The stay issued August 22, 2023 is vacated on the date 

this opinion becomes final as to this court. (See Cal. Rules of Court, rule 

8.264(b).)

DATO, J.

I CONCUR:

KELETY, J.
Irion, J., Dissenting.

I disagree with the majority’s resolution of this case. In my view, in 

granting writ relief the majority neglects principles of writ review, disregards 

the applicable standard of review, ignores facts that refute its premises and 

conclusions, and misconstrues the mental health diversion statute. I cannot 

join such a decision.

I

No Basis for Extraordinary Writ Review

No order to show cause should have been issued in this case. Except 

when it is the only form of appellate review available, writ review of an 

interlocutory order should be confined to two categories of cases. One 

category includes cases presenting an issue of “public or jurisprudential 

significance,” such as “a novel or constitutional question,” an issue “of 

widespread interest,” or an issue that has produced “conflicting trial court 

interpretations [that] need resolution.” (Science Applications Internat. Corp. 

v. Superior Court (1995) 39 Cal.App.4th 1095, 1100.) The other includes 

cases where “the lower court’s determination imposes unusually harsh and 

unfair results for which ordinary appellate review is inadequate.” (Id. at 

pp. 1100–1101.) This case fits into neither category.

A

No Significant Legal Issue

Jeanette Sarmiento raised no significant legal question in her petition. 

She merely complained that in denying her request for mental health 

diversion, the trial court applied incorrect legal standards and reached 

conclusions unsupported by substantial evidence. That is a routine challenge 

to the court’s assessment of the evidence and exercise of discretion in 
2

applying the governing statute to the evidence. Prerogative writs should be 

used to review discretionary pretrial rulings only when they involve 

“questions of first impression that are of general importance to the trial 

courts and to the profession, and where general guidelines can be laid down 

for future cases.” (Oceanside Union School Dist. v. Superior Court (1962) 58 

Cal.2d 180, 185, fn. 4; accord, Langhorne v. Superior Court (2009) 179 

Cal.App.4th 225, 234; see Conway v. Municipal Court (1980) 107 Cal.App.3d 

1009, 1016 (Conway) [writ of mandate “will not lie to force an exercise of 

discretion in a particular manner”].) That is not the situation here.

B

No Irreparable Injury

Sarmiento also has not shown she will suffer harm that cannot be 

adequately redressed on appeal. The order denying mental health diversion 

could have been reviewed on appeal of the judgment finally entered in her 

case. (Pen. Code, §§ 1237, subd. (a), 1259;1 People v. Qualkinbush (2022) 79 

Cal.App.5th 879, 887–888 (Qualkinbush).) Appeal is a presumptively 

adequate remedy, and Sarmiento has the burden to show it is not. (Phelan v. 

Superior Court (1950) 35 Cal.2d 363, 366 (Phelan); People v. Jahansson 

(2010) 189 Cal.App.4th 202, 213; Provencher v. Municipal Court (1978) 83 

Cal.App.3d 132, 133–134 (Provencher).) She has not met that burden.

Sarmiento’s allegation she “has no plain, speedy, or adequate remedy at 

law other than the relief sought in this petition,” made “without reference to 

any facts, [is] not sufficient to sustain [her] burden of showing that the 

remedy of appeal would be inadequate.” (Phelan, supra, 35 Cal.2d at p. 370.) 

Neither is her allegation she “w[ould] be irreparably injured” without writ 

review by being “deprived of critical mental health treatment and her lawful 

1 Subsequent undesignated section references are to the Penal Code.
3

opportunity to earn a dismissal of her criminal charge” and by being 

“unjustly expose[d] . . . to a term in state prison” through continued 

prosecution. She has not explained why she cannot obtain necessary mental 

health treatment while the criminal case proceeds against her, nor identified 

any specific injury she will suffer without treatment. Any prison term 

imposed on Sarmiento could be vacated, and her opportunity to obtain 

dismissal of the attempted robbery charge could be restored, by a successful 

attack on the order denying mental health diversion in an appeal of the 

judgment entered in the case. What Sarmiento is really complaining about is 

having to go through a trial, and if necessary, an appeal. “A trial does not 

generally meet the definition of ‘irreparable injury,’ being at most an 

irreparable inconvenience.” (Ordway v. Superior Court (1988) 198 

Cal.App.3d 98, 101, fn. 1 (Ordway).) And the remedy by appeal “ ‘is not 

inadequate merely because more time would be consumed by pursuing it 

through the ordinary course of law than would be required in the use of an 

extraordinary writ.’ ” (Provencher, supra, 83 Cal.App.3d at p. 134.)

C

Disruption of Orderly Processing of Cases

There is simply nothing unusual about this case that warrants 

extraordinary writ review. It is a routine matter that should have been 

handled in the routine way, i.e., by a trial followed, if necessary, by an 

appeal. Because review of an interlocutory order on appeal from the final 

judgment is an adequate remedy in the usual case, reviewing courts should 

not delay trials and vex parties with multiple proceedings by regularly 

intervening by writ whenever a party claims the trial court ruled wrongly on 

a motion. (Provencher, supra, 83 Cal.App.3d at p. 134.) “Also, it is not fair to 

parties on appeal who have often waited years for the final resolution of their 
4

disputes to have litigants in the pretrial stage elbow their way into the line at 

our door.” (Ordway, supra, 198 Cal.App.3d at p. 101, fn. 1.) By taking “ ‘ “too 

lax a view of the ‘extraordinary’ nature of prerogative writs” ’ ” in issuing the 

order to show cause in this case, the majority delayed resolution of appeals 

pending in this court to issue an opinion of no precedential value. (Omaha 

Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272.) I 

disagree with that decision.

II

No Basis for Extraordinary Writ Relief

No writ relief should be granted in this case. The majority’s contrary 

decision flows from its foundational error in not clearly articulating and 

applying the applicable standard of review: abuse of discretion. An opinion 

“that fails to apply the appropriate standard of review is of questionable 

value because it is little more than untethered personal opinion. In such a 

case, principles of law are discussed with no point of reference. They are not 

circumscribed by proper deference to the appellate standard of review.” 

(People v. Foss (2007) 155 Cal.App.4th 113, 125.) As I explain below, when 

the trial court’s order is reviewed for abuse of discretion, it must be upheld.

A

Standard of Review

The mental health diversion statute provides the trial court “may, in its 

discretion,” grant a defendant’s pretrial request for diversion. (§ 1001.36, 

subd. (a).) An order denying such a request is reviewed for abuse of 

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

Qualkinbush, supra, 79 Cal.App.5th at p. 887.) That standard is 

“deferential,” but “the deference it calls for varies according to the aspect of a 

trial court’s ruling under review. The trial court’s findings of fact are 
5

reviewed for substantial evidence, its conclusions of law are reviewed de 

novo, and its application of the law to the facts is reversible only if arbitrary 

and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 709, 

711–712, fns. omitted.) “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].” (People v. Moine (2021) 

62 Cal.App.5th 440, 449.) A decision that “exceed[s] the bounds of reason” 

(Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 (Shamblin)) or “is so 

irrational or arbitrary that no reasonable person could agree with it” (People 

v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony)) constitutes an abuse of 

discretion. A party attacking a decision as an abuse of discretion must show 

such prejudicial abuse. (People v. Montes (2014) 58 Cal.4th 809, 869; People 

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

B

No Prejudicial Error in Trial Court’s Determinations

Sarmiento challenges the trial court’s determinations she would not 

respond to mental health treatment, posed an unreasonable risk of danger to 

public safety, and had not presented a satisfactory treatment plan to meet 

her specialized mental health needs. The majority concludes errors in each of 

those determinations require the trial court to vacate its order denying her 

request for mental health diversion and to enter a new order granting the 

request. I shall address each alleged error and explain why, in my view, none 

justifies the relief granted by the majority.
6

1

No Abuse of Discretion in Response to Treatment Determination

The majority faults the trial court for relying on Sarmiento’s relapses 

into substance abuse and criminal behavior after having twice undergone 

treatment for substance abuse to conclude she would not respond to mental 

health treatment. According to the majority, those relapses do not indicate 

any failure on the part of Sarmiento or any lack of success of the prior 

treatment because substance abusers commonly relapse. (Maj. opn., ante, at 

pp. 11–12.) The majority faults the trial court for “conflating substance abuse 

recovery with therapy and medication directed at PTSD [posttraumatic stress 

disorder] and depression,” conditions the majority says “were never treated 

comprehensively.” (Maj. opn., ante, at pp. 12–13.) The majority is wrong on 

the facts and the law.

The trial court properly considered Sarmiento’s relapses into substance 

abuse and criminality after treatment in determining whether she would 

respond to mental health treatment. One suitability requirement for pretrial 

diversion is that “[i]n the opinion of a qualified mental health expert, the 

defendant’s symptoms of the mental disorder causing, contributing to, or 

motivating the criminal behavior would respond to mental health treatment.” 

(§ 1001.36, subd. (c)(1).) Cynthia Boyd, Ph.D., a forensic neuropsychologist 

who interviewed Sarmiento once at the jail, diagnosed her with “[PTSD], 

Chronic,” “Major Depressive Disorder, Recurrent,” and “Stimulant Use 

Disorder-Methamphetamine (in institutional remission)”; and attributed her 

criminal behavior to the “pursuit of methamphetamine” and “need[ ] to obtain 

money to buy drugs for herself and likely her boyfriend.” In the section of her 

report on section 1001.36, subdivision (c)(1), Boyd stated depression and 

PTSD can be treated with medication and psychotherapy, but said nothing 
7

about substance abuse treatment. She noted earlier in the report, however, 

that Sarmiento started using methamphetamine 26 years ago, completed a 

residential substance abuse treatment program in 2013, had multiple 

hospitalizations for substance abuse in 2019, and completed courses on 

substance abuse and relapse prevention in prison in 2021, but relapsed into 

methamphetamine abuse and committed robbery or attempted robbery after 

those interventions. Of the three mental health disorders with which Boyd 

diagnosed Sarmiento, the substance abuse disorder was the one most 

immediately related to her criminal behavior. The trial court therefore 

reasonably focused on that disorder and how Sarmiento had responded to 

treatment of that disorder. As the court stated, “past performance is the best 

indicator of future performance and success.”2

Sarmiento’s past poor performance, as documented in Boyd’s report, 

constitutes substantial evidence, i.e., evidence that is “ ‘reasonable, credible, 

2 The Legislature has recognized past performance is relevant to 

predicting future performance by expressly authorizing a trial court to 

“consider previous records of participation in diversion” “when determining 

whether to exercise its discretion to grant diversion.” (§ 1001.36, subd. (k).) 

Courts have similarly recognized the predictive value of past performance in 

this and other contexts. (See, e.g., In re Shaputis (2011) 53 Cal.4th 192, 219 

[“Past criminal conduct and current attitudes toward that conduct may both 

be significant predictors of an inmate’s future behavior should parole be 

granted.”]; Loder v. City of Glendale (1997) 14 Cal.4th 846, 908 (conc. & dis. 

opn. of Mosk, J.) [“a current employee’s actual safety record is in all 

likelihood a much better predictor of future safety performance than is the 

off-the-job drug use tested by urinalysis”]; People v. Whitmill (2022) 86 

Cal.App.5th 1138, 1152 (Whitmill) [past benefit from mental health 

treatment indicated likelihood defendant would respond to treatment if 

diverted]; In re L.O. (2021) 67 Cal.App.5th 227, 238 [“ ‘ “ ‘[P]ast violent 

behavior in a relationship is “the best predictor of future violence.” ’ ” ’ ”]; 

In re T.V. (2013) 217 Cal.App.4th 126, 133 [“A parent’s past conduct is a good 

predictor of future behavior.”].)
8

and of solid value’ ” (Gerson, supra, 80 Cal.App.5th at p. 1079), supporting 

the trial court’s conclusion that Sarmiento would not respond to mental 

health treatment. (See Pacheco, supra, 75 Cal.App.5th at p. 214 [defendant’s 

14-year history of abusing methamphetamine and prior related arrests made 

“his resolve to stop using the drug . . . dubious”].) The court did not “exceed[ ] 

the bounds of reason” by drawing that conclusion and denying the request for 

diversion. (Shamblin, supra, 44 Cal.3d at p. 478; Pacheco, at p. 213.)

The majority suggests, however, relapse is so common in persons with 

substance abuse disorders that a trial court ruling on a motion for pretrial 

diversion cannot consider relapse as a failure of treatment and deny diversion 

on that basis. For this proposition, the majority cites an online publication by 

the National Institute on Drug Abuse entitled “Understanding Drug Use and 

Addiction DrugFacts,” which states that “relapse doesn’t mean that 

treatment doesn’t work.” (Maj. opn., ante, at p. 12.) The publication also 

states, “Relapse indicates the need for more or different treatment.” Such 

treatment, of course, can help only someone who desires and obtains it. The 

trial court reasonably could conclude based on Sarmiento’s multiple relapses 

that she is not committed to sobriety and would not respond to treatment. 

(See Pacheco, supra, 75 Cal.App.5th at p. 214 [defendant’s 14-year history of 

abusing methamphetamine and prior related arrests made “his resolve to 

stop using the drug . . . dubious”]; People v. Watts (2022) 79 Cal.App.5th 830, 

837 (Watts) [defendant’s history of noncompliance with treatment justified 

denial of pretrial diversion].) In any event, the NIDA publication is of little 

value in predicting whether Sarmiento would respond favorably to additional 

treatment and avoid criminal behavior, because it says nothing about the 

causes or likelihood of relapse in any particular case or the connection 

between relapse and criminality.
9

More concerning is the logical implication of the majority’s suggestion. 

If the commonness of relapse after treatment in defendants with substance 

abuse disorders prohibits a trial court from considering relapse as a basis for 

concluding a defendant would not respond to treatment, then whenever a 

defendant with a qualifying substance abuse disorder relapses and commits a 

crime to which the disorder contributed, the court could not deny pretrial 

diversion on the basis of relapse no matter how many times the defendant had 

been treated and relapsed. I cannot subscribe to an approach to the mental 

health diversion statute that would lead to such an absurd result. (See, e.g., 

People v. Bullard (2020) 9 Cal.5th 94, 107; People v. Elias (1990) 218 

Cal.App.3d 1161, 1164.)

Nor can I assent to the majority’s conclusion the trial court erred in 

denying pretrial diversion by failing to consider Sarmiento’s lack of prior 

treatment for PTSD and depression, conditions Boyd reported led Sarmiento 

to “self-medicat[e]” with methamphetamine and to commit robbery and 

attempted robbery to get money to buy the drug. A careful review of the 

documents Sarmiento submitted in support of her request for pretrial 

diversion refutes the majority’s factual premise that “Sarmiento never 

received any coordinated treatment” for PTSD and depression. (Maj. opn., 

ante, at p. 12.)

Boyd reported Sarmiento had been prescribed antidepressant 

medication when she was 13 years old, had been diagnosed with PTSD in 

2019, and was currently taking Trazodone (which Boyd described as an 

“antidepressant and sedative”) and Remeron (which Boyd described as an 
10

“antidepressant”).3 In an interview with Sarmiento’s counsel, Sarmiento’s 

mother reported Sarmiento was diagnosed with depression and anxiety in 

childhood and was prescribed and took medication. Sarmiento’s former 

employer told her counsel he had offered in April 2022 to move her to a 

different location so that she could get treatment, but she declined. 

Sarmiento’s parole officer told her counsel that Sarmiento “attended all of her 

Behavioral/Mental Health appointments . . . from July through December of 

2022.” Records from hospitalizations for acute methamphetamine 

intoxication and an anxiety attack in 2019 state Sarmiento was given 

information and resources to follow up with her primary care physician and a 

psychiatrist as an outpatient and declined to meet with a social worker about 

follow-up care. 

The record thus shows Sarmiento for many years has been under the 

care of a psychiatrist or other physician and has been treated for PTSD and 

depression or has been offered such treatment, and despite such treatment or 

offers she continued to abuse methamphetamine and to commit crimes. 

A reasonable inference from this record is that Sarmiento would not respond 

to mental health treatment for depression and PTSD if she were diverted 

because she has not responded in the past. (See fn. 2, ante.) Since that 

inference supports the trial court’s decision to deny the request for pretrial 

diversion, we must draw that inference. (People v. Flores (2020) 9 Cal.5th 

3 Trazodone and Remeron (a brand name for mirtazapine) are used to 

treat depression, methamphetamine use disorders, and anxiety disorders, 

including PTSD. 

(<https://www.ncbi.nlm.nih.gov/books/NBK470560/#:~:text=Trazodone%20re

duces%20levels%20of%20neurotransmitters,alpha%2D1%2Dadrenergic%20r

eceptors> [as of Jan. 9, 2024], archived at <https://perma.cc/SA35-VCX7>; 

<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3907331/> [as of Jan. 9, 

2024], archived at <https://perma.cc/42S5-TDNM>.)
11

371, 411; Shamblin, supra, 44 Cal.3d at pp. 478–479; Gerson, supra, 80 

Cal.App.5th at p. 1079; Watts, supra, 79 Cal.App.5th at p. 837.)

The majority refuses to draw that inference and instead relies on the 

People’s concession “the record does not contain evidence that [Sarmiento] 

received prior sustained treatment for [PTSD] or depression.” This court is 

not bound to accept a party’s concession. (People v. Kim (2011) 193 

Cal.App.4th 836, 847; Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 

438, 448–449; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) “In 

[my] view, the [People’s] erroneous concession cannot and should not prevent 

this court from applying sound legal principles to the objective facts disclosed 

by the record.” (Bell, at p. 449.) Application of such principles to the actual 

facts requires us to uphold the trial court’s decision to deny diversion.

2

No Abuse of Discretion in Satisfactory Treatment Plan Determination

I also disagree with the majority’s conclusion insufficient evidence 

supports the trial court’s determination the proposed treatment program 

would not meet Sarmiento’s particular needs. One condition pretrial 

diversion is “subject to” is that “[t]he court is satisfied that the recommended 

inpatient or outpatient program of mental health treatment will meet the 

specialized mental health treatment needs of the defendant.” (§ 1001.36, 

subd. (f)(1)(A)(i); see People v. Frahs (2020) 9 Cal.5th 618, 627 [court may 

grant pretrial diversion if it “is satisfied that the recommended program of 

mental health treatment will meet the specialized mental health treatment 

needs of the defendant”]; Qualkinbush, supra, 79 Cal.App.5th at pp. 886–887 

[describing court’s satisfaction with recommended mental health treatment 

program as one of the “statutory requirements” for pretrial diversion].) The 

trial court was not satisfied with the treatment plan described at the hearing, 
12

based in part on Sarmiento’s commission of crimes related to her substance 

abuse even after she had received treatment and been incarcerated. The 

majority faults the trial court for relying on her recidivism, because, the 

majority says, her “supposed lack of success in drug treatment does not 

rationally support a conclusion that a comprehensive program of treatment 

for her underlying mental health diagnoses of PTSD and depression, coupled 

with substance abuse treatment, would not yield different (and more positive) 

results.” (Maj. opn., ante, p. 14.) This criticism of the trial court’s 

determination is unpersuasive because the majority again relies on the 

premise Sarmiento has not previously been treated for PTSD and depression. 

As explained above, that premise is false. (See pp. 9–11, ante.)

Furthermore, Sarmiento’s relapse-related recidivism was not the only 

reason the trial court was dissatisfied with the proposed treatment program, 

despite the majority’s contrary suggestion. At the hearing on the request for 

pretrial diversion, the court identified as a “sticking point” whether “a 

program that would address her needs . . . has been identified and properly 

presented.” It was Sarmiento’s burden to present a satisfactory plan to the 

court. (§ 1001.36, subd. (e); Gerson, supra, 80 Cal.App.5th at pp. 1078–1079.) 

She did not do so.

In her written filing, Sarmiento stated that based on an evaluation by a 

licensed mental health clinician who works for the public defender, the plan 

was for her to attend a County-funded residential treatment program for 

substance abuse; get connected to resources that target her specific mental 

health needs while in the program; and then receive medication management 

services, case management, and individual therapy through the Countyfunded outpatient mental health clinic. Sarmiento identified no treatment 

provider, no duration of treatment, and no specific treatment she would 
13

receive; nor did she explain how any treatment would address the symptoms 

that contributed to her commission of crimes. Her counsel tried to supply 

some of the missing information at the hearing by referencing Boyd’s 

recommendations of psychotherapy for PTSD, a psychiatric consult for 

medication for PTSD, and substance abuse education and treatment. But 

Boyd stated in her report “she would not be treating [Sarmiento], or finding 

others to treat her,” and her recommendations were merely “offered for 

consideration.” Counsel admitted at the hearing there was no “specific plan” 

for Sarmiento, but assured the court that before she completed the 

residential substance abuse treatment program, “we will apply to the 

different places and we will figure out the best fit, and she will have a place 

where she can go and see somebody and talk to somebody about her issues 

and get medication.” 

I cannot agree that what was so vaguely presented to the trial court 

was “a comprehensive program of treatment,” as the majority asserts. (Maj. 

opn., ante, at p. 14.) The uncertainty about whether Sarmiento would be 

treated at all and, if so, the lack of specificity in how, how long, where, and by 

whom she would be treated—serious defects the majority ignores—support 

the trial court’s conclusion Sarmiento did not meet her burden to present a 

plan that would meet her specialized mental health treatment needs. 

(§ 1001.36, subd. (f)(1)(A)(i); Gerson, supra, 80 Cal.App.5th at pp. 1079–1080; 

Qualkinbush, supra, 79 Cal.App.5th at pp. 886–887.) Its decision to deny 

diversion on that ground was not “so irrational or arbitrary that no 

reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at 

p. 377; see Watts, supra, 79 Cal.App.5th at p. 837 [insufficient case plan 

justifies denial of pretrial diversion].)
14

3

No Prejudicial Error in Dangerousness Determination

The majority also sets aside the trial court’s determination that 

Sarmiento is not suitable for diversion because she poses an unreasonable 

risk of danger to public safety.4 (Maj. opn., ante, at pp. 15–18.) I disagree 

with the majority’s treatment of this issue as well.

Had the majority not erred in concluding insufficient evidence 

supported the trial court’s determinations Sarmiento would not respond to 

mental health treatment and had not presented an adequate treatment plan, 

it would not need to address the dangerousness issue. A trial court’s denial of 

a request for mental health diversion must be upheld if at least one of the 

grounds for denial is sufficient. (Watts, supra, 79 Cal.App.5th at p. 837; 

People v. Oneal (2021) 64 Cal.App.5th 581, 593.) “Since the trial court gave 

multiple grounds for denying diversion, any one of which was an 

independently permissible basis for concluding the requirements of section 

1001.36 had not been met, it [would be] harmless error [if] one of the multiple 

grounds [were] invalid.” (Watts, at p. 837.) Thus, even had the court erred by 

relying on Sarmiento’s dangerousness to deny her request for pretrial 

diversion, we still must uphold the denial because, as I have explained, the 

two other “grounds for denying diversion cited by the court reflected an 

4 One of the suitability requirements for pretrial diversion is that “[t]he 

defendant will not pose an unreasonable risk of danger to public safety, as 

defined in Section 1170.18, if treated in the community.” (§ 1001.36, subd. 

(c)(4).) Section 1170.18, subdivision (c) defines “unreasonable risk of danger 

to public safety” as “an unreasonable risk that the petitioner will commit a 

new violent felony within the meaning of [section 667, subdivision 

(e)(2)(C)(iv)].” Such felonies, known colloquially as “super strikes,” include 

violent sex crimes, homicides, and felonies punishable by life imprisonment 

or death. (People v. Valencia (2017) 3 Cal.5th 347, 351 & fn. 3.)
15

independent assessment by the court and were supported by substantial 

evidence that brought the court’s decision well within its discretion.” (Ibid.)

Having decided to overturn the trial court’s determinations on those 

other grounds, however, the majority must address the court’s dangerousness 

ruling. The majority relies primarily on Whitmill, supra, 86 Cal.App.5th 

1138, where the only statutory ground at issue was dangerousness, to 

conclude a court may not deny a pretrial diversion request on that ground 

unless the court finds, based on substantial evidence, that the defendant 

would pose an unreasonable risk of committing a super strike if treated in 

the community. (Maj. opn., ante, at pp. 16–18.) The majority asserts 

allowing a court to deny diversion based on dangerousness without such a 

finding would be inconsistent with the statutory purpose to provide 

treatment to a defendant with a qualifying mental health disorder as “the 

best strategy for breaking the cycle of criminal recidivism.” (Maj. opn., ante,

at p. 18.) I am not persuaded.

I agree that if substantial evidence supports a finding a defendant 

would pose an unreasonable risk of committing a super strike if treated in 

the community, the defendant is not suitable for pretrial mental health 

diversion. (§ 1001.36, subd. (c)(4).) But I do not agree that if the defendant 

does not pose such a risk, but does pose an unreasonable risk of committing 

some other violent crime if treated in the community, the trial court may not 

rely on that risk in combination with other factors to deny pretrial diversion. 

After all, the statute gives the court discretion to grant a request for 

diversion, and it may deny such a request if it determines the defendant or 

the crime is not suitable. (Id., subds. (a), (e); People v. Bunas (2022) 79 

Cal.App.5th 840, 861–862.) Indeed, a court has discretion to deny a request 

for pretrial diversion even if the defendant meets all the eligibility and 
16

suitability criteria. (Whitmill, supra, 86 Cal.App.5th at p. 1149; Gerson, 

supra, 80 Cal.App.5th at p. 1080.) A trial court thus must consider and 

weigh all relevant statutory factors in exercising its discretion, including the 

express statutory purpose to “[i]ncrease[ ] diversion of individuals with 

mental disorders to mitigate the individuals’ entry and reentry into the 

criminal justice system while protecting public safety.” (§ 1001.35, subd. (a), 

italics added.) I disagree with the majority’s broad pronouncements to the 

extent they would prohibit a court from taking into consideration a 

defendant’s risk of committing a violent crime that does not constitute a 

super strike when exercising its discretion on a request for pretrial diversion.

III

Conclusion

We never should have taken this case up on writ review. A writ of 

mandate “will not lie to force an exercise of discretion in a particular 

manner.” (Conway, supra, 107 Cal.App.3d at p. 1016.) Where, as here, the 

trial court is given discretion in a matter, “ ‘ “ ‘[a]n appellate tribunal is 

neither authorized nor warranted in substituting its judgment for the 

judgment of the trial judge.’ ” ’ ” (Carmony, supra, 33 Cal.4th at p. 377.) 

“The discretion was the trial judge’s, not ours; and we can only interfere if we 

find that under all the evidence, viewed most favorably in support of the trial 

court’s action, no judge could reasonably have made the order that he did.’ ” 

(Newbauer v. Newbauer (1949) 95 Cal.App.2d 36, 40.) The majority violates 

these rules to overturn an order with which it disagrees but was within the 

trial court’s discretion to make, and it does so based on an assumed set of 

facts contradicted by the record.
17

I dissent. I would discharge the order to show cause as having been 

improvidently issued, summarily deny Sarmiento’s petition, and dissolve the 

stay of trial court proceedings.

IRION, Acting P. J.