SEE CONCURRING AND DISSENTING OPINION

Filed 9/24/21 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

FRANCISCO CORTEZ RODRIGUEZ,

Defendant and Respondent.

F080268

(Tulare Super. Ct. No. PCF358304)

OPINION

APPEAL from an order of the Superior Court of Tulare County. Michael B. 

Sheltzer, Judge.

Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney, 

Dave Alavezos, Jessica Weatherly, Adam Clare, and Katherine Smith, Deputy District 

Attorneys, for Plaintiff and Appellant.

Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and 

Respondent.

-ooOoo-
2

INTRODUCTION

Respondent and defendant Francisco Cortez Rodriguez (Rodriguez), who was 70 

years old and diagnosed with Alzheimer’s dementia, was arrested after an altercation 

with a security guard at a market. He was charged with four felony offenses with one 

prior strike conviction. After being held to answer, he moved for pretrial mental 

diversion pursuant to Penal Code1sections 1001.35 and 1001.36, based on the argument 

that his Alzheimer’s dementia was a significant factor in the commission of the charged

offenses. The Tulare County District Attorney’s office opposed the diversion motion. 

After a lengthy evidentiary hearing, including testimony from an expert about 

Rodriguez’s mental disorder, the trial court overruled the district attorney’s objections, 

granted Rodriguez’s motion, and placed him on pretrial mental health diversion with a 

specific treatment plan pursuant to section 1001.36.

Thereafter, the People of the State of California, as appellant and represented by 

the district attorney, filed the instant appeal from the trial court’s order that granted the 

diversion motion.

Rodriguez argues the People lack the statutory right to file an appeal from the trial 

court’s order. In the alternative, Rodriguez asserts the People have raised a new 

objection to the testimony of the expert that was not raised at the diversion hearing and 

have forfeited appellate review of this contention.

We affirm. We find the People have a statutory right to file an appeal from the 

trial court’s order granting pretrial mental health diversion based on section 1238, 

subdivision (a)(1). We further find the People forfeited review of the new argument 

about the expert testimony being raised on appeal, based on the People’s concession that 

they did not raise this objection at the diversion hearing, and well-recognized authorities 

that hold such challenges are forfeited if not raised below.

1 All further statutory citations are to the Penal Code unless otherwise indicated.
3

FACTS

On November 3, 2017, B.S. was working as the security guard for Guadalajara 

Meat Market in Porterville.2 He saw Rodriguez in the parking lot, jumping in front of 

vehicles and trying to stop customers. B.S. gave Rodriguez $2 and asked him to leave 

the property. B.S. went into the store and was contacted by a female customer, who 

reported that Rodriguez solicited her to commit a sexual act.

B.S. returned to the parking lot and saw Rodriguez relieving himself in public. 

B.S. told Rodriguez to leave, but he refused. B.S. said he was going to place Rodriguez 

in handcuffs until the police arrived. Rodriguez told B.S. that if he touched him, he was 

going to kill him. B.S. tried to detain Rodriguez, but Rodriguez hit B.S. in the face with a 

stick that was four to five feet long. Rodriguez said his friends were going to “get” B.S. 

and beat him up.

The police responded to the market and tried to take Rodriguez into custody. The 

officers believed he was intoxicated based on his watery and bloodshot eyes, slurred 

speech, and the strong odor of an alcoholic beverage coming from him. Rodriguez was 

still holding the stick and refused to comply with the officers’ orders to put down the 

stick. When the officers attempted to detain him, Rodriguez resisted and tried to pull 

away from them. He was eventually restrained, placed in handcuffs, and seated in a 

patrol car. While he was in the car, he kept shouting in Spanish and threatened to kill the 

officers when he got out of jail or have someone do it for him.

Rodriguez was arrested and booked into custody at the jail.

PROCEDURAL BACKGROUND

On November 7, 2017, a felony complaint was filed in the Superior Court of 

Tulare County charging Rodriguez with count 1, assault with a deadly weapon, a stick 

(§ 245, subd. (a)(1)); count 2, criminal threats (§ 422), with an enhancement for personal 

2 The following facts are from the preliminary hearing.
4

use of a deadly weapon (§ 12022, subd. (b)(1)); and counts 3 and 4, resisting an executive 

officer (§ 69); with one prior strike conviction and one prior serious felony enhancement.

On the same day, Rodriguez pleaded not guilty and denied the special allegations. 

The court set bail and Rodriguez remained in custody.

Section 4011.6 Report

On November 17, 2017, the court granted the request of Rodriguez’s attorney for a 

mental health evaluation pursuant to section 4011.6.3 Rodriguez remained in jail.

On December 7, 2017, a licensed mental health clinician with Corizon Behavorial 

Health Services filed a mental health assessment after meeting with Rodriguez in jail. As 

the court later stated, the report concluded that Rodriguez met the diagnostic criteria for 

bipolar disorder based on symptoms of pressured speech, distractibility, inflated sense of 

self, decreased need for sleep, flight of ideas, and some psychomotor agitation.

On December 8, 2017, the court reviewed the section 4011.6 report, and ordered 

the probation department to determine whether Rodriguez should receive an honor 

release.

Probation Report About Pretrial Release

On December 27, 2017, the probation officer filed the requested report. The 

probation officer tried to interview Rodriguez, who remained in custody at the jail, but 

Rodriguez’s answers to general questions “were sometimes nonsensical, and he seemed 

to have difficulty comprehending” the questions.

Rodriguez said he did not know why he was in custody; he did not remember what 

happened on the day of his arrest; and he was not drinking that day. Rodriguez 

repeatedly said that he had only been in custody three or four days, even though he had 

3 Section 4011.6 provides for the transfer of jail inmates who may be mentally 

disordered to a facility for 72-hour treatment and evaluation pursuant to Welfare and 

Institutions Code section 5150. (Del Castillo v. Superior Court (2019) 38 Cal.App.5th 

1117, 1121.)
5

been in jail since November 3, 2017. Rodriguez also said he woke up feeling hung over 

on the morning of the interview and claimed he had consumed alcohol the night before, 

even though he was in jail and had no access to alcohol.

The probation officer determined Rodriguez had 70 arrests for public intoxication 

since 1995, plus prior incidents of domestic violence and assault.

The probation officer spoke with Rodriguez’s wife, who stated he was diagnosed 

with dementia one year earlier. He had a history of alcoholism but stopped drinking after 

he was released from custody in April 2017, following his most recent prior arrest. His 

wife explained that while he remained sober, he would “consistently wake up in the 

mornings stating he needs to drink because he feels as though he is hung over because he 

drank the night before, but Mrs. Rodriguez stated [he] had not consumed any alcohol the 

night before.” She reported that on the day of his arrest, he snuck out of the house and 

started drinking alcohol again. She wanted him released from jail but did not think she 

could care for him by herself and had considered admitting him into an assisting living 

facility.

The probation officer recommended against pretrial release because of 

Rodriguez’s alcoholism and aggressiveness, and his wife’s belief that she could not care 

for him by herself.

On March 6, 2018, the court granted Rodriguez’s motion for pretrial release 

subject to electronic monitoring. Thereafter, Rodriguez complied with the terms of his 

pretrial release and electronic monitoring for the entirety of the proceedings and did not 

commit any new violations of law.

The Information

On May 1, 2018, the court conducted the preliminary hearing and held Rodriguez 

to answer.
6

On May 4, 2018, the information was filed that alleged the same felony counts as 

in the complaint, including the prior strike conviction. Rodriguez again pleaded not 

guilty and denied the allegations.

PRETRIAL MENTAL HEALTH DIVERSION

Effective on June 27, 2018, the Legislature enacted a discretionary pretrial

diversion program for people with qualifying mental disorders. (§§ 1001.35, 1001.36, 

added by Stats. 2018, ch. 34, § 24; People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs); 

People v. Moine (2021) 62 Cal.App.5th 440, 447 (Moine).) The provisions of section 

1001.36 are fully retroactive to cases not yet final on appeal. (Frahs, supra, 9 Cal.5th at 

pp. 624, 630.)

Section 1001.36 states that a trial court may grant pretrial diversion if it finds all of 

the following. First, the court must be “satisfied that the defendant suffers from a mental 

disorder as identified in the most recent edition of the Diagnostic and Statistical Manual 

of Mental Disorders ....” (§ 1001.36, subd. (b)(1)(A).)4 “Section 1001.36, 

subdivision (b)(1)(A) defines a qualifying mental disorder as one that is ‘identified in the 

most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, 

including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or 

post-traumatic stress disorder, but excluding antisocial personality disorder, borderline 

personality disorder, and pedophilia.’ ” (Moine, supra, 62 Cal.App.5th at p. 449.)5

4 Unless otherwise indicated, all further citations to the “DSM-5” are to the fifth 

and current edition of the Diagnostic and Statistical Manual of Mental Disorders (2013), 

which the trial court and the parties discussed at the diversion hearing, and the court 

relied on to grant Rodriguez’s motion for diversion.

The DSM-5 is “a handbook published by the American Psychiatric Association, 

used by health care professionals all over the world as an authoritative guide to the 

diagnosis of mental disorders.” (Acevedo Granados v. Garland (9th Cir. 2021) 992 F.3d 

755, 760, fn. 1; People v. Johnson (2015) 235 Cal.App.4th 80, 83 & fn 2.)

5 Effective January 1, 2019, section 1001.36 was amended to state that defendants 

charged with murder, voluntary manslaughter, and enumerated sexual assault offenses are 
7

“Evidence of the defendant’s mental disorder shall be provided by the defense and 

shall include a recent diagnosis by a qualified mental health expert. In opining that a 

defendant suffers from a qualifying disorder, the qualified mental health expert may rely 

on an examination of the defendant, the defendant’s medical records, arrest reports, or 

any other relevant evidence.” (§ 1001.36, subd. (b)(1)(A), italics added.)6

Second, the court must be “satisfied that the defendant’s mental disorder was a 

significant factor in the commission of the charged offense.” (§ 1001.36, 

subd. (b)(1)(B).) “A court may conclude that a defendant’s mental disorder was a 

significant factor in the commission of the charged offense if, after reviewing any 

relevant and credible evidence, including, but not limited to, police reports, preliminary 

hearing transcripts, witness statements, statements by the defendant’s mental health 

treatment provider, medical records, records or reports by qualified medical experts, or

evidence that the defendant displayed symptoms consistent with the relevant mental 

disorder at or near the time of the offense, the court concludes that the defendant’s mental 

disorder substantially contributed to the defendant’s involvement in the commission of 

the offense.” (Ibid.)

Third, “a qualified mental health expert” must opine that “the defendant’s 

symptoms of the mental disorder motivating the criminal behavior would respond to 

mental health treatment.” (§ 1001.36, subd. (b)(1)(C).) Fourth, subject to certain 

exceptions, the defendant must consent to diversion and waive his or her right to a speedy 

trial. (Id., subd. (b)(1)(D).) Fifth, the defendant must agree to comply with treatment as 

a condition of diversion. (Id., subd. (b)(1)(E).) Finally, the court must be “satisfied that 

ineligible for diversion. (Frahs, supra, 9 Cal.5th at pp. 626–627; § 1001.36, 

subd. (b)(1)(F); Stats. 2018, ch. 1005, § 1.)

6 As the People concede, section 1001.36 does not define the phrase “qualified 

mental health expert.”
8

the defendant will not pose an unreasonable risk of danger to public safety ... if treated in 

the community.” (Id., subd. (b)(1)(F).)

“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....” (§ 1001.36, subd. (b)(3).)7

“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. [Citations.] The maximum period of diversion is 

two years. [Citation.] 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. [Citation.] ‘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 arrest upon which the diversion was based shall be deemed 

never to have occurred.’ [Citation]” (Frahs, supra, 9 Cal.5th at p. 627, italics added.)

The court’s decision on a motion for diversion is reviewed for an abuse of 

discretion, and factual findings are reviewed for substantial evidence. (Moine, supra, 62 

Cal.App.5th at pp. 447–449; People v. Oneal (2021) 64 Cal.App.5th 581 [279 

Cal.Rptr.3d 142, 149].)

7 The amendments that were effective on January 1, 2019, also added 

subdivision (b)(3) to section 1001.36, prior to when Rodriguez filed his motion for 

diversion. (Stats.2018, ch. 1005, § 1, eff. Jan. 1, 2019.)
9

RODRIGUEZ’S MOTION FOR DIVERSION

On June 14, 2019, Rodriguez filed a motion for pretrial mental health diversion 

pursuant to section 1001.36. The motion stated Rodriguez’s physician diagnosed him 

with “Alzheimer’s Dementia” prior to his arrest in this case. Rodriguez had been charged 

with alcohol-related offenses “dozens” of times in the past. In the spring of 2017, 

Rodriguez was released from custody after his most recent prior arrest, he was closely 

watched by his family, and he stopped drinking. Rodriguez’s symptoms from 

Alzheimer’s dementia, however, led him to falsely believe he was suffering from a 

hangover and he wanted to drink again. On the day of his arrest in this case, he left the 

family home and suffered a relapse into alcoholism, which exacerbated his Alzheimer’s 

dementia and resulted in his arrest for the charged offenses.

Rodriguez’s motion asserted that symptoms from Alzheimer’s dementia motivated 

his criminal behavior and played a significant role in the commission of the charged 

offenses:

“No one can know what was going on in Mr. Rodriguez’s head on 

November 3, 2017, perhaps Mr. Rodriguez least of all. The most likely 

series of events is that he was experiencing uncomfortable symptoms, 

including headache, which he interpreted as hangover, despite being sober 

for months at that point. Both his [adult] daughter and probation [in the 

pretrial release report] relate Mr. Rodriguez complaining of hangover when 

it is clear that he had not been drinking prior .... Recalling only the longterm memory that drinking alcohol when hung-over can alleviate the 

negative symptoms, and forgetting due to Alzheimer’s that he had not 

consumed alcohol recently or for months, he sought to ‘cure’ his hangover 

by drinking alcohol. Thus, though alcohol was a factor in the charged 

behavior, the alcohol consumption was itself due to the underlying mental 

illness: Alzheimer’s Dementia.”8

The motion acknowledged that Rodriguez would suffer from Alzheimer’s 

dementia for the rest of his life and his mental health condition would become worse but 

8 As will be explained below, the district attorney’s opposition quoted the first 

sentence of this paragraph out of context.
10

argued he would benefit from treatment for his condition through pretrial diversion since 

he was already responding at home under the care of his two physicians.

The motion was supported by documentary exhibits consisting of a letter from 

Dr. Francis Cunanan, M.D., and a review of Rodriguez’s medical records conducted by 

Amber Alves-McAuley, a licensed clinical social worker (LCSW) with the public 

defender’s office.

Dr. Cunanan’s Letter

Dr. Cunanan’s letter, dated September 11, 2017 (two months before Rodriguez 

was arrested in this case), stated Rodriguez (born 1947) had been his patient for the past 

five years, and he had “multiple medical problems which include Alzheimer’s 

Dementia.” Dr. Cunanan stated that inpatient rehabilitation would not be appropriate 

because Rodriguez was suffering from “worsening and incurable Alzheimer’s Dementia,” 

and he would be “better treated at home with his current medications; furthermore, he has 

stopped drinking altogether.”

Ms. Alves-McAuley’s Records Review

Ms. Alves-McAuley submitted a report in support of the motion. She had over 12 

years of experience in social services and previously worked as a therapist at the Visalia 

Adult Integrated Clinic, where she conducted mental health assessments and provided 

therapy services.

Interview with Rodriguez’s family

Ms. Alves-McAuley’s report summarized her meeting with Rodriguez and his 

family. Rodriguez was now 71 years old, out of custody, and lived with his wife and 

adult children in Porterville. His wife and daughter said he was unable to directly answer 

questions because he suffered from Alzheimer’s dementia, memory loss, and confusion. 

Rodriguez had worked in the fields until he retired in 2006.

Rodriguez’s prior record included misdemeanor charges of child endangerment, 

public intoxication, battery, resisting arrest, trespassing, false information to the police, 
11

criminal threats, possession of a weapon, hit and run, driving on a suspended license, 

petty theft, driving under the influence, and malicious mischief, and felony charges of 

criminal threats and domestic violence.

Prior to his arrest in this case, Rodriguez’s last conviction for public intoxication 

was in March 2017. Rodriguez’s daughter said he had a serious problem with alcohol, 

his prior offenses were related to his alcoholism, there were times the family called the 

police because of domestic violence when he was drunk, and several times he drank so 

much that he was admitted to the hospital. Rodriguez had previously completed a courtordered residential treatment program and attended Alcoholics Anonymous meetings.

Rodriguez’s daughter believed he was diagnosed with Alzheimer’s dementia four 

years earlier. His daughter noticed symptoms several years before the diagnosis because 

he got lost, forgot his parents died, and had problems understanding his daily assignments 

when he was still working.

Rodriguez’s daughter stated that since he had been released from jail in the instant 

matter, he was taking his medication and doing much better. His daughter and her family 

moved from Fresno to Porterville to be closer to her parents and help care for Rodriguez. 

His adult children and older grandchildren cared for him, and he had not wandered away 

again because of increased supervision. His family intended to continue to care for 

Rodriguez at home, and they stated they would reach out for additional support if his 

condition became unmanageable.

Dr. Cunanan’s Records

Ms. Alves-McAuley’s report included a review of Rodriguez’s medical records 

from Dr. Cunanan, his primary care physician who diagnosed him with Alzheimer’s 

dementia. Dr. Cunanan’s records “indicate[d] symptoms of dementia in the months 

leading up to the offenses.” On August 28, 2017, Dr. Cunanan’s records stated that 

Rodriguez’s wife reported he was “ ‘getting worse’ and was ‘agitated and anxious.’ ” 
12

Dr. Cunanan saw Rodriguez on September 11 and October 5, 2017, and described 

Rodriguez as “ ‘agitated and anxious.’ ”

Dr. Thiagarajan’s Records

Ms. Alves-McAuley report stated that Dr. Ramu Thiagarajan, M.D., was 

Rodriguez’s neurologist. Dr. Thiagarajan’s records for February 11, 2019, stated that 

Rodriguez was diagnosed with Alzheimer’s dementia, and his “ ‘[c]ognitive decline has 

been apparent for two years. His mental status appears to be gradually deteriorating over 

the last 6 months.’ ” Dr. Thiagarajan reported Rodriguez “ ‘cannot recognize familiar 

faces, find his way home, or remember the date,’ ” he experienced confusion and 

disturbed sleep, but his sleep improved with adjusting his medication.

Dr. Thiagarajan’s records stated that an MRI was performed on Rodriguez’s brain, 

and the results “ ‘showed significant atrophy and white matter ischemic changes 

consistent with vascular dementia.’ ” Rodriguez was taking psychotropic medications 

including Namzaric, Gabapentin, Buspirone, Seroquel, and Cymbalta.

Recommendation

Ms. Alves-McAuley’s report stated that based on her review of Rodriguez’s 

medical records and interviews with his family, she believed he suffered from “the 

mental disorder Alzheimer’s dementia,” and his mental disorder was a major factor in the 

current charges because Rodriguez was reportedly suffering from symptoms including 

confusion and memory impairment at the time of his arrest.

“Although Mr. Rodriguez has a history of alcoholism, I believe it is 

likely that his actions in the present case are related to his mental illness. 

Mr. Rodriguez’s family reports that leading up to his arrest[,] he had been 

experiencing memory problems and confusion, and had wandered away 

from home on numerous occasions. Mr. Rodriguez’s daughter states that 

he would remember that he had once liked alcohol and would leave the 

house to get a drink, forgetting that he no longer drank. Since that time, 

Mr. Rodriguez was started on an effective psychiatric medications regimen, 

and his family rearranged their schedules to ensure that Mr. Rodriguez is 

being adequately supervised.
13

“Mr. Rodriguez’s family is abundantly clear that Mr. Rodriguez 

must take his medications consistently as prescribed, and that he must be 

watched carefully to avoid the possibility of wandering off and getting into 

trouble again.

“Although Mr. Rodriguez suffers from an incurable and worsening 

disease, in my opinion his family and doctors have found a way to work 

together and manage his symptoms. I believe that continued medication 

management as well as the support of his family will maintain Mr. 

Rodriguez’s current stability and allow him to safely remain in his home 

and avoid reoffending.” (Italics added.)

THE DISTRICT ATTORNEY’S OPPOSITION

On July 11, 2019, the district attorney filed opposition and asserted the statutory 

requirements for diversion “are far more rigorous than simply granting diversion to every 

defendant who comes to court and says, in effect, ‘I have a mental illness, I want to be 

diverted.’ ”

The district attorney challenged the following statement in Rodriguez’s motion: 

“ ‘No one can know what was going on in Mr. Rodriguez’s head on November 3, 

2017.’ ” (Bold print omitted.) The district attorney asserted that such a statement was 

“utterly incompatible” with the statutory requirements for diversion because “[h]ow can 

[Rodriguez] argue that he knows that his mental disorder played any role when ‘no one 

can know what was going on in Mr. Rodriguez’s head...?’ ”

9

The district attorney posited that Rodriguez’s doctor “might know what was going 

on in [his] head, or at least have an opinion whether [his] mental disorder played a 

9 The district attorney quoted this statement from Rodriguez’s motion out of 

context. As noted above, the rest of the paragraph connected Rodriguez’s lack of short 

term memory as a result of Alzheimer’s dementia, to his erroneous belief that he had a 

hangover and needed to start drinking again: “Recalling only the long-term memory that 

drinking alcohol when hung-over can alleviate the negative symptoms, and forgetting due 

to Alzheimer’s that he had not consumed alcohol recently or for months, he sought to 

‘cure’ his hangover by drinking alcohol. Thus, though alcohol was a factor in the 

charged behavior, the alcohol consumption was itself due to underlying mental illness: 

Alzheimer’s Dementia.”
14

significant role in the commission of the charged offense. Unfortunately, Dr. Cunanan 

renders no such opinion. All Dr. Cunanan’s statement indicates is that [Rodriguez] is 

[his] patient and has Alzheimer’s Dementia,” and the physician’s letter did not address 

Rodriguez’s arrest.10

Next, the district attorney argued Rodriguez improperly relied on Ms. AlvesMcAuley’s report to support “the notion” that his mental disorder of Alzheimer’s 

dementia played a significant role in the commission of the charged offenses.

“First, LCSW Amber Alves-McAuley is not a medical doctor and her 

opinion, though perhaps helpful in many ways, cannot be the sole basis to 

establish that [Rodriguez’s] mental disorder played a significant role in the 

commission of the charged offense, especially when Dr. Cunanan is 

noticeabl[y] silent on the issue.”

The district attorney argued the social worker failed to ask Rodriguez about what 

happened on the day of his arrest, and thus had no basis for her opinion that a mental 

disorder played a significant role in the commission of the charged offenses. Rodriguez 

also had prior violent felonies that could not be excused by Alzheimer’s dementia, and 

the district attorney asserted he was panhandling on the day of his arrest and got caught. 

“After all, no one can know what was going on in [Rodriguez’s] head, perhaps the Court 

least of all ....” 

EVIDENTIARY HEARING ON DIVERSION MOTION

On September 20, 2019, the court conducted an evidentiary hearing on 

Rodriguez’s motion for pretrial diversion.

Ms. Alves-McAuley’s Testimony on Voir Dire

Ms. Alves-McAuley was called by Rodriguez and was the only witness; both 

parties conducted voir dire as to whether she was an expert. She had a bachelor’s degree 

in psychology and a master’s degree in social work, worked in social services for about 

10 Dr. Cunanan’s letter, stating that Rodriguez was diagnosed with Alzheimer’s 

dementia, was dated two months before his arrest in this case.
15

12 years, and had been an LCSW for two years. She had been trained about disorders 

listed within the DSM-5. While she was not a medical doctor, her training involved 

reviewing information from physicians to conduct patient assessments.

Ms. Alves-McAuley testified that while an Alzheimer’s diagnosis required MRIs 

and medical testing, Alzheimer’s disease was listed in the DSM-5 as a mental disorder 

and defined as a “major neurocognitive disorder due to Alzheimer’s disease.”

The District Attorney’s Objections

After voir dire, the district attorney objected to Ms. Alves-McAuley testifying as 

an expert because Rodriguez’s diversion motion was based on the claim that he had 

Alzheimer’s disease; Alzheimer’s disease was a medical diagnosis and not a mental 

health condition; Ms. Alves-McAuley’s expertise “[was] not in that medical field;” and 

she was not qualified to testify as an expert in this case since she was not a medical 

doctor.

The district attorney “definitely agree[d]” Ms. Alves-McAuley had “a lot of 

training,” but argued she could not qualify as an expert in this case because “Alzheimer’s 

disease is a medical disorder, and the substance of the moving paper[s] in this matter is 

that [Rodriguez] has been diagnosed with Alzheimer’s disease.Ms. Alves-McAuley’s 

expertise is not in that medical field.”

The district attorney asserted the social worker did not have “specific training” 

about Alzheimer’s disease but only had “some related experience in a related disorder in 

the DSM-5 ... which is a neurocognitive disorder that could be caused by Alzheimer’s or 

other dementia-related disorders, but that is a separate diagnosis from Alzheimer’s. So 

accordingly, I don’t think that this is a properly qualified expert in the given case.”

The Court Overrules the District Attorney’s Objections

The court stated Ms. Alves-McAuley was called as an expert to testify whether 

Rodriguez suffered from Alzheimer’s disease, she could testify as an expert, and any lack 

of specific expertise on the topic would go to the weight and not the admissibility of her 
16

testimony. The court noted she was not being called as an expert to give her own

diagnosis of Alzheimer’s dementia, and the district attorney could object to her testimony 

if she lacked expertise on the topic.

As Ms. Alves-McAuley started to testify about her review of Rodriguez’s medical 

records, the district attorney immediately objected and claimed such testimony 

constituted inadmissible hearsay. The court overruled the objection and held the formal 

rules of evidence did not apply at a diversion hearing, the court could consider hearsay 

evidence, and Ms. Alves-McAuley could rely on reports from other experts.

The district attorney lodged a continuing hearsay objection to all aspects of 

Ms. Alves-McAuley’s testimony and argued section 1001.36 did not eliminate the 

hearsay rules of evidence.

The court overruled the district attorney’s evidentiary objections because the 

entirety of the diversion statute “contemplates reliable hearsay being admissible in these 

hearings.” It found section 1001.36, subdivision (b) permitted introduction of a broad 

range of “relevant and credible evidence,” including medical records, records or reports 

by qualified medical experts, or evidence the Rodriguez displayed symptoms consistent 

with the relevant medical disorder at or near the time of the offense, and 

subdivision (c)(3) further stated the diversion hearing “shall be informal” and that 

“reliable hearsay” may be introduced.11

11 The court correctly overruled the district attorney’s evidentiary objections. “A 

court may conclude that a defendant’s mental disorder was a significant factor in the 

commission of the charged offense if, after reviewing any relevant and credible evidence,

including, but not limited to, police reports, preliminary hearing transcripts, witness 

statements, statements by the defendant’s mental health treatment provider, medical 

records, records or reports by qualified medical experts, or evidence that the defendant 

displayed symptoms consistent with the relevant mental disorder at or near the time of the 

offense, the court concludes that the defendant’s mental disorder substantially contributed

to the defendant’s involvement in the commission of the offense.” (§ 1001.36, 

subd. (b)(1)(B), italics added.) “The hearing on the prima facie showing shall be 
17

The district attorney again objected to Ms. Alves-McAuley’s testimony because 

Rodriguez’s motion for diversion was based on the allegation that he suffered from 

Alzheimer’s disease, that was a medical diagnosis, and she was not qualified to testify as 

an expert about the medical diagnosis that Rodriguez’s motion was relying on:

“And, Your Honor, given that [Ms. Alves-McAuley] does not have 

the expertise in Alzheimer’s – it would be a doctor – and given that 

Alzheimer’s in and of itself is not specifically in the DSM-5, but a related 

product of impairment disorder, is my understanding, her reviewing of 

reports showing the defendant’s diagnosis can, in fact, inform her opinion 

as to his potential diagnosis in the DSM-5 which is within her field of 

expertise, but the evidence elicited through the People in the hearsay 

statement, that she is relying on a diagnosis from a doctor who is not

present in this court, who is reporting that the defendant has Alzheimer’s, is 

a lack of foundation because she does not have expertise in Alzheimer’s, 

but also is hearsay because that is an out-of-court declarant.” (Italics 

added.)

The court asked Ms. Alves-McAuley if she was licensed to make diagnoses as an 

LCSW. She said yes and explained Alzheimer’s disease is listed as a mental disorder in 

the DSM-5, and the latest edition gave Alzheimer’s a different name because the manual 

was “constantly changing names of things, but it is the same diagnosis.”

The court overruled the district attorney’s objections, and stated it had “looked at 

DSM-5 and Alzheimer’s is definitely among the diagnoses ....”12

informal and may proceed on offers of proof, reliable hearsay, and argument of 

counsel....” (§ 1001.36, subd. (b)(3), italics added.)

12 The district attorney’s repeated assertions that Alzheimer’s disease was not in 

DSM-5 were incorrect.

The fourth volume of the DSM (DSM-IV) listed “dementia as among mental 

disorders that include cognitive deficits resulting from (among other causes) ‘the 

combined effects of cerebrovascular disease and Alzheimer’s disease.’ ” (County of Los

Angeles v. Superior Court (2013) 222 Cal.App.4th 434, 448, fn. omitted.) “ ‘The 

disorders in the ‘Dementia’ section [of DSM-IV] are characterized by the development of 

multiple cognitive deficits (including memory impairment) that are due to the direct 

physiological effects of a general medical condition, to the persisting effects of a 
18

Ms. Alves-McAuley’s Testimony

Ms. Alves-McAuley testified that in approximately 2015, Dr. Cunanan, 

Rodriguez’s primary care physician, diagnosed him with Alzheimer’s disease, a mental 

illness identified in the DSM-5. Rodriguez’s adult daughter saw symptoms about four 

years before he was arrested in this case.

In Ms. Alves-McAuley’s opinion, Rodriguez also met the criteria in the DSM-5 

for alcohol use disorder and sustained remission based on his multiple prior arrests for 

public intoxication, and his family’s disclosure that he had an alcohol problem. His 

family knew Rodriguez stopped drinking in April 2017, because they were watching him. 

However, Rodriguez would get confused and forget that he was not drinking anymore, 

and he would repeatedly tell his family that he had a hangover and wanted to drink again.

After Rodriguez had been in custody for three weeks in this case, the probation 

officer interviewed him and Rodriguez again insisted that he had a hangover, even though 

he had not been drinking. The probation officer also reported Rodriguez had difficulty 

comprehending questions and his answers were nonsensical.

Ms. Alves-McAuley testified that Rodriguez wandered away from his home on the 

day of his arrest in this case, because his family did not realize how closely they had to 

watch him. Ms. Alves-McAuley testified the DSM-5 listed wandering, combative 

substance, or to multiple etiologies (e.g., the combined effects of cerebrovascular disease 

and Alzheimer’s disease).’ [Citation.]” (Id. at p. 448, fn. 11.)

At the diversion hearing in this case, the trial court expressly relied on the fifth 

edition of the DSM, published in 2013. DSM-5 stated the disorders previously described 

in the fourth edition as “ ‘Dementia, Delirium, Amnestic, and Other Cognitive 

Disorders’ ” had been reclassified as “neurocognitive disorders (NCDs),” and “[t]he 

major or mild NCD subtypes” included “NCD due to Alzheimer’s disease.” (DSM-5 at 

p. 521, italics added.) “Dementia is subsumed under the newly named entity major 

neurocognitive disorder ....” (DSM-5 at p. 521.) “Major NCD corresponds to the 

condition referred to in DSM-IV as dementia, retained as an alternative in this volume.” 

(DSM-5 at p. 536.)
19

behavior, and physically aggressive behavior as characteristics of Alzheimer’s dementia 

and neurocognitive disorder.13

When his family realized Rodriguez walked away from the house, they looked for 

him, called hospitals and police, and were very worried because they could not find him.

Rodriguez was now at home, and his daughter reported his behavior appeared to 

be well controlled with his current medications, and he no longer wandered away. His 

physical health was declining, and he needed more assistance from his family to perform 

the activities of daily living.

Cross-examination

Ms. Alves-McAuley testified she interviewed Rodriguez on April 8, 2019. He 

responded to questions about his early life but could not remember recent events. She 

explained that Rodriguez’s ability to remember the distant past, but not the present, was 

consistent with someone suffering from a neurocognitive disorder.

The district attorney asked whether Alzheimer’s and related cognitive disorders 

are also medical conditions. Ms. Alves-McAuley testified that in contrast to many 

mental disorders in the DSM-5, there was a medical basis for Alzheimer’s if an MRI is 

performed. Rodriguez’s physician ordered an MRI and reported that it was consistent 

with dementia.14

13 “[A]pproximately 80% of individuals with major NCD due to Alzheimer’s 

disease have behavioral and psychological manifestations; these features are also frequent 

at the mild NCD stage of impairment.... With moderately severe major NCD, psychotic 

features, irritability, agitation, combativeness, and wandering are common. Late in the 

illness, gait disturbance, dysphagia, incontinence, myoclonus, and seizures are observed.” 

(DSM-5 at pp. 540–541, italics added.) “Agitation is common in a wide variety of 

NCDs, particularly in major NCD of moderate to severe severity, and often occurs in the 

setting of confusion or frustration. It may arise as combative behaviors, particularly in 

the context of resisting caregiving duties such as bathing and dressing....” (DSM-5 at 

p. 535, italics added.)

14 “The NCDs are unique among DSM-5 categories in that these are syndromes 

for which the underlying pathology, and frequently the etiology as well, can potentially 

be determined. The various underlying disease entities have all been the subject of 
20

The district attorney asked whether Alzheimer’s and dementia were different 

disorders. Ms. Alves-McAuley testified Alzheimer’s was a specific form of dementia, 

and the DSM-5 broadly defined categories of neurocognitive disorders to include 

Alzheimer’s disease and other brain injuries.

Ms. Alves-McAuley acknowledged she was not a doctor and could not make a 

medical diagnosis, but she could make a diagnosis of neurocognitive disorder under the 

DSM-5 based on Rodriguez’s medical records and history of his behavior.

The district attorney asked whether the DSM-5 stated that Alzheimer’s dementia 

was a progressively worsening disorder. Ms. Alves-McAuley said it was incurable and 

progressively became worse.

The Court’s Questions

The court noted that Corizon’s mental health assessment of Rodriguez was 

performed in jail on November 17, 2017, shortly after his arrest, and that it “points out a 

lot of the disorientation and lack of ability to understand what’s going on,” and gave a 

diagnosis of bipolar disorder.

The court asked Ms. Alves-McAuley how to determine whether Rodriguez’s 

mental disorder played a significant role in the commission of the instant offenses, or if 

he was just drunk, obnoxious, and violent, given his numerous prior arrests for public 

intoxication. Ms. Alves-McAuley testified that “you can’t see into anybody’s mind,” but 

noted that when Rodriguez was in custody, the probation officer had reported that he had 

difficulty comprehending questions. Rodriguez’s physician had already diagnosed him 

with dementia prior to his arrest in this case, and his daughter said his symptoms existed 

when he was still working in the fields and could not comprehend his assignments. Ms. 

extensive research, clinical experience, and expert consensus on diagnostic criteria.” 

(DSM-5 at p. 521.)
21

Alves-McAuley believed his confusion, memory issues, and wandering away from home 

could be due to his mental disorder.15

The Parties’ Arguments

After hearing Ms. Alves-McAuley’s testimony, the court invited the parties to 

argue the merits of the diversion motion.

Rodriguez’s Arguments

Rodriguez’s attorney argued the evidence established the criteria set forth in 

section 1001.36 for pretrial diversion because Alzheimer’s disease was a diagnosis in the 

DSM-5, even though the nomenclature had changed in the current edition, and Rodriguez 

had other qualifying diagnoses of alcoholism in remission and bipolar disorder. The 

mental disorder played a significant role in the commission of the charged offenses and 

his conduct was consistent with that disorder – he wandered away from home and got 

into a physical altercation, which were “literally” textbook symptoms of Alzheimer’s 

disease. Rodriguez’s behavior was inconsistent with his prior arrests for public 

intoxication, and his previous violent behavior was separated by quite a bit of time from 

the instant case.

Counsel stated since Rodriguez had been released from custody, his symptoms 

responded to medication and treatment from his physicians, and he had not consumed 

alcohol or been involved in any disruptive behavior.

The District Attorney’s Arguments

The district attorney argued Rodriguez failed to prove his alleged mental disorder 

was a significant factor in committing the charged offenses, because even the defense 

motion stated that “no one can know what was going on inside the defendant’s head 

15 “Agitation is common in a wide variety of NCDs, particularly in major NCD of 

moderate to severe severity, and often occurs in the setting of confusion or frustration. It 

may arise as combative behaviors, particularly in the context of resisting caregiving 

duties such as bathing and dressing....” (DSM-5 at p. 535, italics added.)
22

when he committed the crime in question.” The district attorney asserted, “[W]hat we do 

know is that the history of [his] drug intoxication goes back literally for decades,” and 

was the more likely reason for his conduct.

The district attorney again claimed Alzheimer’s disease was not listed in the 

DSM-5:

“[THE DISTRICT ATTORNEY]: “[T]he medical symptoms of 

Alzheimer’s and/or dementia, which are two different things medically, I 

might add, require different diagnoses altogether, and some are diagnosed 

different ways than others. The medical diagnoses of dementia or 

Alzheimer’s are different from the DSM-5 diagnosis.

“THE COURT: Where does that come from?

“[THE DISTRICT ATTORNEY]:Alzheimer’s is a medical disease.

“THE COURT:It’s also a mental health disease as outlined in the 

DSM-5.

“[THE DISTRICT ATTORNEY]:I understand that, but we have no 

evidence showing that what makes it a mental health disease outlined in the 

DSM-5 are the same exact requirements that –

“THE COURT:It’s the same disease.I’m not understanding your 

argument.

“[THE DISTRICT ATTORNEY]:What is in the DSM-5, according 

to the expert, is a neurocognitive impairment.

“THE COURT: And that is Alzheimer’s as well.”

16 (Italics 

added.)

Next, the district attorney argued that Rodriguez’s alleged mental disorder was not 

subject to pretrial diversion because “Alzheimer’s does not have a great prognosis, it is a 

significantly worsening disease that only declines. So while it may respond to 

16 Again, the district attorney’s renewed arguments on this point were meritless 

because the fifth edition of the DSM clearly identified Alzheimer’s disease as a 

neurocognitive disorder and clarified that only the chapter heading and classification had 

changed. (DSM-5 at p. 541.)
23

management, I don’t know that management of Alzheimer’s and related dementia 

disorders and diseases is within the legislature’s contemplation of treatment within 

1001.36” since it was incurable.

The court replied that diversion would be appropriate for a mental illness, even if 

incurable, if the subject could respond to treatment.17 The district attorney insisted that 

Alzheimer’s was not “receptive to treatment,” the proposed treatment plan was 

insufficient to ensure public safety and pointed out that Rodriguez had prior convictions 

for battery and domestic violence that could not be blamed on Alzheimer’s disease or 

alcohol.

THE COURT’S RULING

The court stated it had taken judicial notice of Rodriguez’s records, including the 

preliminary hearing, the medical reports that Rodriguez was diagnosed with Alzheimer’s 

disease, the pretrial reports from the probation department and Corizon, and considered 

the parties’ motions and arguments.

The court stated it was going to grant the motion for diversion, and made the 

following findings:

“[Rodriguez] suffers from a mental disorder that has been identified in the 

most recent edition of the DSM-5, and that would include the 

neurocognitive brain disorder. That is that he’s been diagnosed with 

Alzheimer’s. The Court has little doubt that he was suffering from that at 

the time.

“In addition, there is even a more recent diagnosis from Corizon, at 

the order of the Court, by a licensed therapist, indicating that they opine 

that his symptomology right after this offense was consistent with bipolar 

disorder. Either one of those diagnoses is sufficient under the statute to 

indicate that the defendant was suffering from a mental disease or disorder 

17 “Major or mild NCD due to Alzheimer’s disease progresses gradually, 

sometimes with brief plateaus, through severe dementia to death. The mean duration 

after diagnosis is approximately 10 years .... Late-stage individuals are eventually mute 

and bedbound.” (DSM-5 at p. 541, italics added.)
24

under the – a mental disorder, I should say, as defined under the statute.” 

(Italics added.)

The court acknowledged Rodriguez had a long history of prior arrests for public 

intoxication and “a serious, serious, chronic problem with alcohol abuse.” While 

Rodriguez also had prior convictions for battery and domestic violence, the court found 

those convictions occurred in 1984, 1998, and 2002, and his more recent offenses were 

alcohol-related and not violent.

“So the question is not whether the mental disorder caused the 

defendant to act in a particular way. The statute talks about whether or not 

the disorder played a significant role in the commission of the offense.... 

[¶] The issue is confused some because of the significant history of alcohol 

abuse, and the fact that essentially [Rodriguez] had fallen off the wagon and 

was drinking at the time of the offense. It is difficult for the Court to say, 

given the defendant’s history with being publicly intoxicated dozens of 

times and never having exhibited any violent behavior in the last 20 years 

or more. The Court has a difficult time saying that the mental disease that 

he is suffering from did not contribute significantly to the incident that he 

was involved in. I know that’s a little backwards and a little convoluted. 

And the People are quite correct, and the expert testimony that we had is 

completely correct, and the defense is completely correct. No one can get 

inside the defendant’s head. That can be said of any defendant, of any 

human being. It could be said of me, of you, of anybody. It’s impossible to 

know that, and so the best the Court can do is, looking at all of the 

evidence, determine whether or not it appears that –- and if you were to – if 

the Court were to opine a but-for test, which is, I think, more stringent than 

the substantial factor analysis, the Court would come to the conclusion that 

but for the mental illness, this offense would have been very unlikely to 

have occurred, and that’s based on the evidence, on the police reports, and 

on his conduct immediately after the offense, including the way that he 

behaved with probation at the time of the pre-trial release report, as well as 

his participation in the Corizon report....” (Italics added.)

The court cited the Corizon report because the evaluation was conducted shortly 

after Rodriguez’s arrest, when he was in jail and did not have access to alcohol. The 

Corizon report showed that Rodriguez “was suffering from a significant mental illness 

even then, and that’s sort of been unabated in the current recent time period.”
25

The court concluded that while it was not “clear-cut,” it found “on balance ... that 

the mental disorder substantially contributed to [Rodriguez’s] ... commission of the 

offense. It again does not need to be exclusive, just substantially contributed. And the 

incident was bizarre enough and out of character enough that the Court is satisfied with 

that.”

The court next found that the symptoms motivating the criminal behavior would 

respond to mental health treatment because “the proof is in the pudding,” since Rodriguez 

was already receiving treatment and medication, and he would not pose an unreasonable 

risk of danger to public safety since he had not reoffended while on community release 

for the past two years.

The court stated that it was inclined to grant the motion but continued the matter 

for further consideration of whether Rodriguez could waive his rights to be placed on 

diversion given his mental condition, he could knowingly and voluntarily consent to the 

treatment plan, and for preparation of a more specific treatment plan.

Rodriguez’s attorney asked whether the court would be satisfied if Rodriguez’s 

physician monitored and reported his condition. The court said that would be acceptable.

The Court’s Diversion Order and Approval of Treatment Plan

On October 4, 2019, the court conducted the continued hearing about the proposed 

treatment plan. Rodriguez’s attorney stated that he submitted a plan where Dr. Cunanan, 

his primary care physician, would be the reporting party and submit status reports that 

outlined Rodriguez’s compliance after every visit.

The district attorney again objected to placing Rodriguez on mental health 

diversion because he was diagnosed with dementia, and that “is not something that can be 

controlled or recovered by medication. He will continue to degenerate down into the 

point of eventually whatever should happen at the end of life stages of dementia. [He] is 

not a candidate for mental health diversion due to the diagnosis. I understand it’s in the 

DSM-5, but the goal of mental health diversion is to get them on medication that will get 
26

them back into society, how to be safe, and return them to what they are supposed to be 

doing. Dementia doesn’t meet that criteria.”

18

 (Italics added.)

The court replied that it already found dementia was a qualifying diagnosis in the 

DSM-5 and was satisfied there was sufficient specificity in the treatment plan to have 

Rodriguez’s physician monitor and report on his status and compliance. In response to 

the court’s questions, Rodriguez stated he was willing to follow the treatment plan and 

waived his right to a speedy trial.

The court granted Rodriguez’s motion for pretrial diversion pursuant to section 

1001.36, adopted the plan that Dr. Cunanan would supervise Rodriguez’s treatment and 

provide regular status reports, and set a review hearing.

The People’s Appeal

On November 6, 2019, the People, represented by the district attorney’s office,

filed the instant notice of appeal of the trial court’s order of October 4, 2019, that granted 

Rodriguez’s motion for diversion (case No. F080268).

As explained above, the district attorney opposed Rodriguez’s diversion motion 

and asserted that Alzheimer’s dementia was a “medical” diagnosis and not a mental 

disorder, it was not listed in the DSM-5 as a mental disorder, Ms. Alves-McCauly was an 

LCSW and not qualified to testify as an expert about a “medical” diagnosis, she could not 

rely on the reports from Rodriguez’s physicians, and Alzheimer’s dementia could not be 

18 While the deputy district attorney ultimately conceded that Alzheimer’s 

dementia was identified as a mental disorder in DSM-5, she continued to argue that it was 

not the type of mental disorder that could be the basis for a diversion order. This 

argument was meritless and inconsistent with section 1001.36, subdivision (b)(1)(A), that 

“defines a qualifying mental disorder as one that is ‘identified in the most recent edition 

of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited 

to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress 

disorder, but excluding antisocial personality disorder, borderline personality disorder, 

and pedophilia.’ ” (Moine, supra, 62 Cal.App.5th at p. 449, italics added.) The statute 

does not exclude Alzheimer’s disease and/or dementia from being a qualifying mental 

disorder for purposes of diversion.
27

the subject of a diversion motion because it was incurable. The trial court overruled these 

objections

On appeal, the People of the State of California, as appellant and represented by 

the district attorney, have not renewed the same objections that were raised at the 

diversion hearing. Instead, the People raise an argument for the first time that was not 

raised at the diversion hearing – that only a psychiatrist or a licensed psychologist may 

testify as a “qualified mental health expert” under section 1001.36, and that a social 

worker or LCSW can never testify in support of any motion for diversion, regardless of 

the mental disorder that is the basis for the motion. The People conceded in its reply 

brief and at oral argument that it did not raise this same issue at the diversion hearing, but 

assert this court must still address the new issue raised for the first time on appeal 

because it presents a question of law.

DISCUSSION

I. The People Have the Statutory Right to Appeal the Trial Court’s Order

In response to this court’s request for supplemental briefing, the parties disagree as 

to whether the People had a statutory right to file the instant appeal from the trial court’s 

order that granted Rodriguez’s motion for pretrial diversion on October 4, 2019.

The People argue they have the right to an appeal based on section 1238, 

subdivision (a)(1), People v. Wright (1975) 47 Cal.App.3d 490 (Wright), and a series of 

cases.19

Rodriguez asserts the instant appeal must be dismissed because the People do not 

have a statutory right to appeal under section 1238 and disputes the People’s reliance on 

the cases cited in its briefing.

19 Given that there are two cases with the same name that address this issue, all 

further citations to “Wright” are to People v. Wright, supra, 47 Cal.App.3d 490.
28

A. Section 1238

“The prosecution’s right to appeal in a criminal case is strictly limited by statute. 

[Citation.] Long-standing authority requires adherence to these limits even though ‘the 

People may thereby suffer a wrong without a remedy.’ [Citation.] The circumstances 

allowing a People’s appeal are enumerated in section 1238.” (People v. Chacon (2007) 

40 Cal.4th 558, 564.)

As relevant to this case, “[u]nder section 1238, subdivision (a)(1), the People are 

entitled to appeal ‘[a]n order setting aside all or any portion of the indictment, 

information, or complaint.’ In determining whether a specific order is appealable under 

this section, courts consider the form, substance and effect of the order. [Citations.] 

While an order may not be specifically listed as an appealable order under section 1238, 

if the substance of the order has the purpose and ultimate effect of setting aside all or any 

portion of the indictment, information, or complaint, then the order is appealable under 

section 1238, subdivision (a)(1). [Citations.]” (People v. McClaurin (2006) 137 

Cal.App.4th 241, 247 (McClaurin), italics added.)

As noted above, the People assert they has the right to file the appeal in the instant 

case based on section 1238, subdivision (a)(1), People v. Wright, supra, 47 Cal.App.3d 

490), and a series of cases that have cited to it. Rodriguez asserts that the People’s appeal 

must be dismissed because Wright did not cite to section 1238, and the People have relied 

on cases that do not support its right to an appeal in this case.

While the People have cited to additional cases that have relied on Wright, supra, 

47 Cal.App.3d 490, these cases have done so either without further analysis, reference to 

section 1238, or for issues not related to the People’s right to an appeal. (See, e.g., 

People v. Mazurette (2001) 24 Cal.4th 789, 791, 797 [defendant’s motion for diversion 

granted after her suppression motion was denied, and then she filed an appeal under 

section 1237 from the trial court’s denial of suppression motion; court acknowledged 

Wright but held it was of “no assistance to defendant” since the defendant’s right to 
29

appeal was based on section 1237 and not section 1238; People v. Alonzo (1989) 210 

Cal.App.3d 466, 468–470 [follows Wright without analysis or citation to section 1238, 

that the People could file an appeal from an order granting drug diversion, and reversing 

order because the defendant was not eligible since he was charged with a disqualifying 

drug offense]; People v. Wright (2002) 99 Cal.App.4th 201, 204 [following Wright 

without analysis or citation to section 1238, finding the People could file an appeal from 

a drug diversion order].)

The concurring and dissenting opinion states that in both the notice of appeal and 

briefing, the People failed to state a statutory basis for the instant appeal and only cited to 

Wright and these other cases and argue that “[i]t was not until their supplemental brief 

that the People finally contended their appeal was authorized under section 1238, 

subdivision (a)(1) and (a)(8).” (Conc. & dis. opn., post, at p. 2.)

A notice of appeal must be “liberally construed.” (Cal. Rules of Court, Rule 8.100 

(a)(4).) An appellant’s opening brief must state, among other things, “that the judgment 

appealed from is final, or explain why the order appealed from is appealable.” (Cal. 

Rules of Court, rule 8.204(a)(2)(B).) The People complied with this rule and included a 

short statement of appealability in their opening brief that cited to Wright and these other 

cases, and further stated that “[a]n order granting pretrial diversion is thus appealable by 

the People. [Citations.]” The People’s citations to Wright in both the notice of appeal 

and opening brief’s statement of appealability were not unreasonable since the opinion 

has not been questioned or undermined for over 45 years.

As demonstrated by the concurring and dissenting opinion, however, there was 

some concern as to whether the People had a statutory right to an appeal from the trial 

court’s order in this case. Given the absence of a defense motion to dismiss the appeal on 

this ground, or defendant challenging appealability in any way, this court afforded the 

parties the opportunity to address this issue. (See, e.g., People v. Alice (2007) 41 Cal.4th

668, 674–680; Gov. Code, § 68081.)
30

As a result, this court requested supplemental briefing from the parties on the 

question of whether the People had the right to appeal the trial court’s order in this case. 

In response, the parties extensively addressed the issue, and the People expressly relied 

on section 1238, subdivision (a)(1), Wright, and other authorities to argue the instant 

appeal was statutorily authorized and, as we will address below, we agree with this 

argument.

We thus turn to section 1238, Wright, and other authorities to determine whether 

the People could file the appeal in this case.

B. Wright

Wright involved a People’s appeal from a drug diversion order issued pursuant to 

section 1000 et seq., statutory provisions that authorize a trial court to grant a motion for 

drug diversion “whenever a case is before any court upon an accusatory pleading” if the 

defendant was charged with committing certain enumerated offenses, and other 

circumstances. (§ 1000, subd. (a); Wright, supra, 47 Cal.App.3d at p. 493; Morse v. 

Municipal Court (1974) 13 Cal.3d 149, 156–160.)

In Wright, supra, 47 Cal.App.3d 490, the defendant was charged with offenses 

that did not qualify him for drug diversion under section 1000 et seq., the same statutes 

addressed in Morse. After a bench trial, he was acquitted of the nonqualifying offenses, 

and convicted of a lesser included offense that was in the enumerated list of qualifying 

offenses. After he was convicted, he requested diversion under section 1000 et seq., and 

argued he was now eligible since he suffered a qualifying conviction. The trial court 

granted his diversion motion over the People’s objections. The People filed both a notice 

of appeal and a petition for writ of mandate and argued the trial court lacked statutory 

jurisdiction under section 1000 et seq. to grant the defendant’s motion for drug diversion 

after he was convicted. (Wright, supra, 47 Cal.App.3d at p. 492.)

Wright first held the People could file an appeal from the trial court’s drug 

diversion order that was issued pursuant to section 1000 et seq.:
31

“We must first decide whether there is in existence an appealable 

order. We hold that the order granting diversion is analogous to a final 

judgment in a ‘special proceeding’ (People v. Murphy, 70 Cal.2d 109, 115 

[74 Cal.Rptr. 65, 448 P.2d 945]), and hence is final for the purposes of 

appellate review. ‘... It is not the form of the decree but the substance and 

effect of the adjudication which is determinative. As a general test, which 

must be adapted to the particular circumstances of the individual case, it 

may be said that where no issue is left for future consideration except the 

fact of compliance or noncompliance with the terms of the first decree, that 

decree is final, but where anything further in the nature of judicial action on 

the part of the court is essential to a final determination of the rights of the 

parties, the decree is interlocutory.’ [Citation.] Hence the order granting 

diversion is an appealable order.” (Wright, supra, 47 Cal.App.3d at 

pp. 492–493, italics added.)

Wright turned to the merits and agreed with the People that the trial court’s order 

for drug diversion after the defendant was convicted was not authorized under 

section 1000 et seq.

“The second question presented is whether the superior court acted 

beyond its jurisdiction in diverting the defendant after his trial and 

conviction. Defendant was diverted pursuant to ... section 1000 after his 

trial and conviction. As stated in People v. Reed, 46 Cal.App.3d 625, 629 

[120 Cal.Rptr. 250]: ‘Since acceptance of this case by the Supreme Court, 

that court has rendered its opinion in Morse v. Municipal Court, 13 Cal.3d 

149 [118 Cal.Rptr. 14, 529 P.2d 46]. The issue raised relative to the court’s 

authority to divert defendant after the completion of a criminal trial has 

been determined adversely to defendant’s position.” (Wright, supra, 47 

Cal.App.3d at p. 493, fn. omitted.)

Wright acknowledged Morse’s analysis of the drug diversion statutes, and rejected 

the defendant’s arguments that he became eligible after he was convicted of a qualifying 

offense:

“[S]ection 1000 states in pertinent part that ‘whenever a case is before any 

court upon an accusatory pleading’ (italics added) and certain prerequisites 

are made, the defendant can be diverted. In the case at bench defendant 

was not eligible for diversion prior to trial, and the Penal Code does not 

make provision for diversions after trial. Furthermore, in light of Reed,

supra, and Morse, supra, defendant cannot be diverted after trial in any 

event.” (Wright, supra, 47 Cal.App.3d at p. 494, second italics added.)
32

Wright reversed the trial court’s order that granted diversion and dismissed the 

People’s writ petition as moot since it found the People’s appeal was appropriate. 

(Wright, supra, 47 Cal.App.3d at p. 494.)

C. Analysis

In the supplemental briefing in this case, the People argued Wright effectively held 

the trial court’s grant of postconviction diversion in that case “was a final and appealable 

order” within the meaning of section 1238, subdivision (a)(1), since that subdivision 

permits a People’s appeal from “[a]n order setting aside all or any portion of the 

indictment, information, or complaint.”

We agree the People have a statutory right under section 1238 to appeal the trial 

court’s pretrial diversion order in this case. We also agree that Wright supports such a 

conclusion. As noted above, section 1238, subdivision (a)(1) states the People may take 

an appeal from “[a]n order setting aside all or any portion of the indictment, information, 

or complaint.” Wright’s holding focused on the impact of an order issued pursuant to the 

express provisions of section 1000 et seq. – that the trial court’s order would eventually 

result in the dismissal of all charges against the defendant if he successfully completed 

drug diversion. There was “ ‘no issue ... left for future consideration except the fact of

compliance or noncompliance,’ ” which meant that order was final for purposes of the 

People filing an appeal. (Wright, supra, 47 Cal.App.3d at pp. 492–493.)

While Wright did not expressly cite to section 1238, its holding on appealability 

impliedly pointed to subdivision (a)(1) as the statutory basis for its conclusion that the 

People had the right to file an appeal of a diversion order issued under section 1000 et 

seq. “While an order may not be specifically listed as an appealable order under section 

1238, if the substance of the order has the purpose and ultimate effect of setting aside all 

or any portion of the indictment, information, or complaint, then the order is appealable 

under section 1238, subdivision (a)(1). [Citations.]” (McClaurin, supra, 137 

Cal.App.4th at p. 247, italics added.)
33

Section 1238, subdivision (a)(1), and the analysis in Wright, clearly apply to the 

People’s appeal in this case. As with drug diversion, section 1001.36, subdivision (c) 

similarly defines pretrial mental health 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 ....” Section 1001.36, subdivision (c)(3) further states: “The period 

during which criminal proceedings against the defendant may be diverted shall be no 

longer than two years.” If the defendant performs satisfactorily in mental health 

diversion and does not reoffend, “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....” (§ 1001.36, subd. (e), italics added.)

As in Wright, once the trial court places a defendant on pretrial mental health 

diversion, there is no issue left for future consideration “ ‘except the fact of compliance 

or noncompliance with the terms of the first decree,’ ” and, as a result, “ ‘that decree is 

final’ ” for purposes of the People’s ability to file an appeal. (Wright, supra, 47 

Cal.App.3d at pp. 492–493.) A trial court’s order that places a defendant on mental 

health diversion under section 1001.36 starts a process that addressed in section 1238, 

subdivision (a)(1), because it “has the purpose and ultimate effect of setting aside all or 

any portion of the indictment, information, or complaint .... [Citations.]” (McClaurin,

supra, 137 Cal.App.4th at p. 247, italics added.)

Thus, while Wright did not expressly rely on section 1238, subdivision (a)(1), the 

holding is consistent with that statutory provision as the basis for the People’s appeal. In 

this case, as in Wright, the People had the statutory right under subdivision (a)(1) to file 

an appeal from the trial court’s order that granted Rodriguez motion for pretrial mental 

health diversion since the diversion order would have the purpose and ultimate effect of 

setting aside the felony charges in the information.
34

While the concurring and dissenting opinion takes exception to the People’s 

arguments on several points, it is important to note that under either the majority or 

concurring and dissenting opinion, the trial court’s order will be affirmed by this court. 

In any event, the concurring and dissenting opinion first asserts the People failed to state 

a statutory basis for this appeal and only relied on case authority. (Conc. & dis. opn., 

post, at pp. 1–2.) As previously noted, however, the People’s supplemental brief, filed at 

this court’s request, expressly cited to section 1238, subdivision (a)(1) as providing the 

statutory basis for this appeal.

Next, the concurring and dissenting opinion cites “the fundamental axiom” that the 

People’s right to an appeal in a criminal case is strictly limited by statute (conc. & dis. 

opn., post, at p. 11), and asserts “[i]t is within the Legislature’s province to define the 

People’s appellate rights. If the Legislature wanted to allow the People to appeal an order 

granting pretrial mental health diversion, it could easily have added that order to the list 

of appealable orders in section 1238, subdivision (a). The Legislature did not do that, and 

it is an unwarranted invasion of the Legislature’s province for this court to allow the 

People to appeal from this order.” (Conc. & dis. opn., post, at pp. 5–6.)

It is well-settled that “the courts are precluded from so interpreting section 1238 as 

to expand the People’s right of appeal into areas other than those clearly specified by the 

Legislature.” (People v. Gaines (1980) 112 Cal.App.3d 508, 512; People v. McGuire

(1993) 14 Cal.App.4th 687, 700–701.) While the application of section 1238 is subject to 

this limitation, many courts have interpreted section 1238 to find a People’s appeal falls 

within the intent of the statute, based on the circumstances in those particular cases. (See, 

e.g., People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1003, 1009–1011 [section 

1238, subdivision (a)(8), that permits appeal of an order “terminating ... any portion of 

an action ... before the defendant has been placed in jeopardy,” interpreted to 

“reasonably include” the People’s appeal of pretrial ruling as to the penalty phase of a 

capital trial]; People v. Chacon, supra, 40 Cal.4th at pp. 561, 563–565; [the People’s 
35

appeal of court’s in limine ruling resulting in dismissal of action was permitted under 

section 1238, subdivision (a)(8)]; People v. VonWahlde (2016) 3 Cal.App.5th 1187, 1194 

[section 1238, subdivision (a)(5), that permits appeal of an order “ ‘made after judgment, 

affecting the substantial rights of the people,’ ” interpreted to include the trial court’s 

order terminating parole]; McClaurin, supra, 137 Cal.App.4th at pp. 246–248 [trial court 

order compelling specific performance of a plea agreement, resulting in dismissing of 

pending charges, was appealable under section 1238, subdivision (a)(1); People v. 

McGuire, supra, 14 Cal.App.4th at pp. 700–701 and cases cited therein [People’s appeal 

of pretrial order for bail was properly filed under section 1238, subdivision (a)(5) because 

ruling affected “ ‘the substantial rights of the people’ ”].)

The concurring and dissenting opinion asserts Wright was incorrectly decided 

because it held that “granting diversion is analogous to a final judgment in a ‘special

proceeding’ (People v. Murphy, supra, 70 Cal.2d at p. 115 [74 Cal.Rptr. 65, 448 P.2d 

945]), and hence is final for the purposes of appellate review.” (Wright, supra, 47 

Cal.App.3d at p. 492.) The concurring opinion finds Wright improperly relied on 

Murphy for this conclusion because Murphy addressed a civil commitment order under 

Welfare and Institutions Code section 3051, that was appealable under former provisions 

of the Code of Civil Procedure since it was a “ ‘special proceeding,’ ” Murphy involved a 

vastly different statutory procedure (since repealed) than presented in Wright and the 

instant case, and Murphy addressed an appeal filed by the defendant and not the People. 

(Conc. & dis. opn., post, at pp. 7–10.)

Wright’s discussion of Murphy was not the result of confusion between a criminal 

and civil commitment. Instead, it simply analogized the import of the commitment to the 

“final” nature of a “special proceeding” in evaluating appealability. This comparison led 

to Wright’s holding that “ ‘[i]t is not the form of the decree but the substance and effect 

of the adjudication which is determinative. As a general test, which must be adapted to 

the particular circumstances of the individual case, it may be said that where no issue is 
36

left for future consideration except the fact of compliance or noncompliance with the 

terms of the first decree, that decree is final, but where anything further in the nature of 

judicial action on the part of the court is essential to a final determination of the rights of 

the parties, the decree is interlocutory.’ [Citation.] Hence the order granting diversion is 

an appealable order.” (Wright, supra, 47 Cal.App.3d at pp. 492–493, italics added.)

Wright’s analogy to the special proceeding in Murphy was not critical to Wright’s

conclusion that the People could file an appeal from the trial court’s drug diversion order. 

Instead, the focus of Wright’s holding was on the express provisions of section 1000 et 

seq. – that the trial court’s diversion order in that case would eventually result in the 

dismissal of all charges against the defendant if he successfully completed drug 

diversion, and the nature of the trial court’s order, “ ‘where no issue is left for future 

consideration except the fact of compliance or noncompliance,’ ” meant the trial court’s 

order was final for purposes of the People filing an appeal. (Wright, supra, 47 

Cal.App.3d at pp. 492–493.)

We reiterate that the People’s appeal in this case was statutorily authorized by 

section 1238, subdivision (a)(1), completely independent of Wright, because the trial 

court’s order, placing Rodriguez on diversion pursuant to section 1001.36, had the 

purpose and ultimate effect of setting aside the charges filed against him in the 

information upon compliance with the treatment plan. (McClaurin, supra, 137 

Cal.App.4th at p. 247.)

As for Wright, that case did not hold that the People had a right to appeal from a 

posttrial diversion order, or from a statute that only authorized a court to issue a posttrial 

diversion order. The fact that the trial court’s order in Wright was issued after the 

defendant was convicted was not the reason for finding the People could file an appeal in 

that case, or the basis for our conclusion that the instant appeal was authorized by section 

1238, subdivision (a)(1).
37

Instead, Wright held the People could file an appeal to seek review of the trial 

court’s order issued pursuant to section 1000 et seq. because “ ‘the substance and effect 

of the adjudication’ ” meant it was final since there was “no issue ... left for future 

consideration except the fact of compliance or noncompliance with the terms of the first 

decree ....’ ” (Wright, supra, 47 Cal.App.3d at p. 492, italics added.) As already 

explained, this is exactly the type of order contemplated by section 1238, subdivision 

(a)(1) since defendant’s compliance with diversion would result in the dismissal of the 

charges in the information, both under the drug diversion statutes in Wright and the 

mental health diversion statutes at issue in this case.

After finding the People’s appeal was valid, Wright turned to the substantive issue, 

and relied on the nature of the trial court’s order being made after conviction as the 

reason it agreed with the People on the merits, that the trial court lacked statutory 

jurisdiction to issue the drug diversion order in that case under section 1000 et seq. 

(Wright, supra, 47 Cal.App.3d at pp. 493–494; Morse, supra, 13 Cal.3d at pp. 156–157.) 

The nature of the trial court’s order was not the basis for Wright’s finding that the People 

had the right to an appeal.

McClaurin illustrates the distinction between finding the People have a right to 

appeal an order pursuant to section 1238, and the substantive argument being raised in 

the People’s appeal. In McClaurin, the trial court granted the defendants’ motion for 

specific performance of a plea agreement, and dismissed other charges over the 

prosecution’s objections, because it found the prosecution improperly withdrew the plea 

offer after the defendants detrimentally relied on it to waive their preliminary hearing. 

(McClaurin, supra, 137 Cal.App.4th at pp. 245–246.)

McClaurin first held the People’s appeal was properly filed based on section 1238, 

subdivision (a)(1), and the merits of the underlying substantive argument were a separate 

consideration from the People’s right to an appeal:
38

“Here, when the court ordered specific performance, it dismissed all 

the pending charges against defendants and amended the complaint ....

The order compelling specific performance thus had the effect of ‘setting 

aside all or any portion of the ... complaint.’ (§ 1238, subd. (a)(1).) 

Accordingly, the People are entitled to appeal under section 1238, 

subdivision (a)(1). [¶] Defendants further contend that for policy reasons 

the People should not be allowed to appeal because to permit an appeal by 

the government under these circumstances would be to condone egregious 

governmental conduct. This argument confuses the merits of the claim 

with the issue of whether the order is appealable. Indeed, our conclusion 

thus far, that under the circumstances of this case the order is appealable by 

the People under section 1238, subdivision (a)(1) expresses no opinion as to 

the motivation behind the People’s withdrawal of the plea offer.” 

(McClaurin, supra, 137 Cal.App.4th at pp. 247–248, fn. omitted.)

McClaurin held the People could file the appeal under section 1238, independent 

of the underlying substantive question being raised. As to the merits, McClaurin 

separately held there was insufficient evidence that defendants detrimentally relied on the 

plea offer and reversed the trial court’s order for specific performance of the plea bargain. 

(McClaurin, supra, 137 Cal.App.4th at p. 250.)

The validity of a People’s appeal under section 1238, and the substantive merits of 

the issues being raised on appeal, are thus two separate considerations. The conclusions 

in McClaurin and Wright that the orders issued by the trial courts therein should be 

reversed, were not central to the preliminary determinations that the People could file 

appeals from those particular orders. Moreover, while McClaurin was based on a 

different factual basis than the instant case, we agree with its analysis of both 

section 1238, subdivision (a)(1), and the conclusion that the question of appealability was 

separate from the merits of the People’s substantive arguments.

We thus conclude that under section 1238, subdivision (a)(1), the People had the 

statutory right to file an appeal from the trial court’s order that granted Rodriguez’s

motion for pretrial mental health diversion pursuant to section 1001.36, because that

diversion order had “the purpose and ultimate effect” (McClaurin, supra, 137 

Cal.App.4th at p. 247) of setting aside the felony charges in the information aside from 
39

“the fact of compliance or noncompliance” with the diversion plan. (Wright, supra, 

47 Cal.App.3d at pp. 492–493.)20

Aside from the question about whether such an appeal is permitted under 

section 1238, the concurring and dissenting opinion expresses concerns about potential 

procedural issues that could result if the People file an appeal from a trial court’s 

diversion order, and whether defendant would suffer prejudice from a pending appeal. 

(Conc. & dis. opn., post, at p. 12.) Wright held the People could appeal from an order 

granting diversion and, while it did not expressly cite to section 1238, it appears that 

courts and parties have not experienced such problems since, as previously noted, Wright

has not been disagreed with or even questioned for over 45 years.

There also are options available to avoid prejudice to defendant if the People file 

an appeal from the trial court’s diversion order. The People could request the trial or 

appellate court to temporarily stay execution of the order granting diversion pending 

appeal (Cal. Rules of Court, rule 8.112), and defendant could request calendar preference 

20 The concurring and dissenting opinion suggests that a trial court’s subsequent 

order that dismisses the charges and effectively sets aside the information “is the one that 

is arguably appealable under section 1238, subdivisions (a)(1) and (a)(8).” (Conc. & dis. 

opn., post, at p. 3.)

In supplemental briefing filed on another issue in this appeal, the People advised 

this court that it had filed a separate appeal in People v. Rodriguez, supra, F082715, that 

was pending before this court; Rodriguez successfully completed diversion while the 

instant appeal was pending and, in 2021, the trial court dismissed the charges filed 

against him.

The trial court’s dismissal of the charges suggests the People did not request a stay 

of execution of the court’s diversion order pending appeal at any time after the order was 

issued in 2019, nor did the parties request consolidation of the two appeals. We decline 

to address any issues that may be raised in People v. Rodriguez, supra, F082715. We 

note that it appears the notice of appeal, filed after the trial court dismissed the charges,

may satisfy the concurring and dissenting opinion’s concerns about the People’s statutory 

right to appeal the trial court’s diversion order and address the People’s contentions on 

the merits.
40

from the appellate court (Cal. Rules of Court, rule 8.240). Such motions were not made 

in this case.

We further note that the concurring and dissenting opinion’s conclusion that 

section 1238 prohibits the People from filing an appeal from the trial court’s order 

granting diversion would restrict the People’s ability to seek review of orders that 

amounted to a clear abuse of discretion. “ ‘If the prosecution has not been granted by 

statute a right to appeal, review of any alleged error may be sought by a petition for writ 

of mandate only when a trial court has acted in excess of its jurisdiction and the need for 

such review outweighs the risk of harassment of the accused. [Citations.]’ [Citation.]” 

(People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 456 (Mitchell).) 

“Some courts have taken an expansive view of the phrase ‘excess of jurisdiction,’ holding 

that where the law allows a court to act in only one way, the court exceeds its jurisdiction 

by doing anything else and the error can be corrected through writ review. [Citations.] 

Other courts have taken a restrictive stance, holding that there is no basis for writ review 

unless the trial court acts without subject matter or personal jurisdiction. [Citations.]” 

(Ibid.)

If a trial court grants diversion in a case where a defendant is statutorily ineligible, 

either because he or she has been charged with murder, voluntary manslaughter, or 

enumerated sexual assault offenses (§ 1001.36, subd. (b)(2)), and/or the claimed 

diagnosed mental disorders are “antisocial personality disorder, borderline personality 

disorder, and pedophilia” (§ 1001.36, subd. (b)(1)(A)), the concurring and dissenting 

opinion’s position would prohibit the People from filing an immediate appeal from that 

order. If the People could appeal at that stage, they could move for a stay of execution, 

and ensure that the appellate court addresses the issue on the merits before a statutorily 

ineligible defendant could potentially successfully complete diversion and obtain 

dismissal of the charges.
41

While the People could file a petition for writ of mandate in such a situation and 

request the appellate court review a diversion order as being issued in excess of the trial 

court’s statutory jurisdiction (Mitchell, supra, 184 Cal.App.4th at pp. 456–458), an 

appellate court’s issuance of a writ of mandate is discretionary and not a matter of right, 

and the petition may be denied without reasons. (See, e.g., Powers v. City of Richmond

(1995) 10 Cal.4th 85, 114.) Moreover, a petition for writ of mandate would be limited to 

narrow jurisdictional issues. The trial court’s decision on a motion for diversion is 

reviewed for an abuse of discretion, and factual findings are reviewed for substantial 

evidence. (Moine, supra, 62 Cal.App.5th at pp. 447–449; People v. Oneal, supra, 64 

Cal.App.5th 581.) The concurring and dissenting opinion’s restrictive view of the 

People’s ability to appeal the trial court’s order would arguably preclude challenges 

where a court may have clearly abused its discretion in making the findings required by 

section 1001.36, including the critical consideration about whether a particular defendant 

“will not pose an unreasonable risk of danger to public safety” if placed on diversion 

(§ 1001.36, subd. (b)(1)(F)).

Finally, the concurring and dissenting opinion speculates that “the reason the 

Legislature has not given guidance on these uncertainties is because it did not intend for 

orders granting diversion to be appealable.” (Conc. & dis. opn., post, at p. 12.) We have 

explained that our decision on this issue is based on section 1238, subdivision (a)(1). 

While Wright did not expressly rely on section 1238, it held that the People could file an 

appeal from a trial court’s decision that granted a defendant’s motion for diversion, it was 

decided in 1975, and it has not been reversed or questioned. The mental health diversion 

statutes at issue in this case were enacted by the Legislature in 2018. (People v. Frahs, 

supra, 9 Cal.5th at p. 624.) Perhaps the Legislature did not address appealability because 
42

“the Legislature is presumed to know about existing case law when it enacts ... a statute 

[citation], ...” (In re W.B. (2012) 55 Cal.4th 30, 57.)21

II. The People Have Forfeited Review of Their Contentions

In this appeal, the People argue the trial court’s diversion order must be reversed 

because a social worker or an LCSW can never be a “qualified mental health expert” and 

testify in support of any motion for diversion under section 1001.36. The People 

acknowledge that section 1001.36 does not define the phrase “qualified mental health 

expert,” but rely on cases interpreting other unrelated statutes to assert that only “a 

psychiatrist or licensed psychologist” is a “qualified mental health expert” who may 

testify at diversion hearings on the question of whether a defendant suffers from a mental 

disorder that was a significant factor in the commission of the charged offenses, and that 

the mental disorder would respond to mental health treatment. “[T]o allow anyone with 

lesser training and education than a licensed psychologist or psychiatrist to render a 

defendant eligible for [pretrial diversion] would be absurd.” The People also argue that 

the testifying expert never gave an opinion as to whether Rodriguez would respond to 

mental health treatment in pretrial diversion.

Rodriguez argues the People have forfeited appellate review of the issue it has 

raised in this appeal – that only a psychiatrist or licensed psychologist can testify as a 

“qualified mental health expert” at any diversion hearing – because the People did not 

raise this same objection at the hearing on Rodriguez’s motion. Rodriguez notes that at 

the diversion hearing in this case, the district attorney objected to Ms. Alves-McAuley’s 

testimony for an entirely different reason – that Rodriguez’s diversion motion asserted he 

21 In drug diversion cases, for example, the Legislature has expressly limited the 

defendant’s ability to appeal, and states “[t]he sole remedy of a defendant who is found 

ineligible for pretrial diversion is a postconviction appeal” (§ 1000, subd. (b), as amended 

by Stats. 1996, c. 1132, § 2; Butler v. Superior Court (1998) 63 Cal.App.4th 64, 69), 

arguably a more serious limitation on a defendant’s interests since he or she may not seek 

review until after there has been a resolution of the charged offenses.
43

suffered from Alzheimer’s dementia, it was a medical condition and not a mental 

disorder, only a physician could testify to support a motion based on a medical diagnosis, 

and Alzheimer’s dementia was not a mental disorder defined in the DSM-5. Rodriguez 

asserts the People cannot raise a new issue on appeal that was not raised below and have 

forfeited review of the issue it seeks to raise for the first time in this appeal.

We agree the People have raised an issue that was not presented at the diversion 

hearing and has thus forfeited review. It is well-settled that “[a] party desiring to 

preserve for appeal a challenge to the admission of evidence must comply with the 

provisions of Evidence Code section 353, which precludes reversal for erroneous 

admission of evidence unless: ‘There appears of record an objection to or a motion to 

exclude or to strike the evidence that was timely made and so stated to make clear the 

specific ground of the objection or motion.’ The reason for the requirement is manifest: 

a specifically grounded objection to a defined body of evidence serves to prevent error. It 

allows the trial judge to consider excluding the evidence or limiting its admission to 

avoid possible prejudice. It also allows the proponent of the evidence to lay additional 

foundation, modify the offer of proof, or take other steps designed to minimize the 

prospect of reversal. [Citation.]” (People v. Morris (1991) 53 Cal.3d 152, 187–188; 

People v. Partida (2005) 37 Cal.4th 428, 434.)

“[T]he objection [must] fairly inform the trial court, as well as the party offering 

the evidence, of the specific reason or reasons the objecting party believes the evidence 

should be excluded, so the party offering the evidence can respond appropriately and the 

court can make a fully informed ruling. If the court overrules the objection, the objecting 

party may argue on appeal that the evidence should have been excluded for the reason 

asserted at trial, but it may not argue on appeal that the court should have excluded the 

evidence for a reason different from the one stated at trial. A party cannot argue the court 

erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida, 

supra, 37 Cal.4th at p. 435.)
44

“A century ago, long before the Evidence Code existed, we explained the need for 

a specific objection. ‘To require this is simply a matter of fairness and justice, in order 

that cases may be tried on their merits. Had attention been called directly in the court 

below to the particular objection which it is now claimed the general objection of 

appellant presented, that court would have had a concrete legal proposition to pass on, 

and counsel for [respondent] would have been advised directly what the particular 

complaint against the question was, and, if he deemed it tenable, could have withdrawn 

the inquiry or reframed his question to obviate the particular objection....” (People v.

Partida, supra, 37 Cal.4th at p. 434, citing Bundy v. Sierra Lumber Co. (1906) 149 Cal. 

772, 776; People v. Morris, supra, 53 Cal.3d at pp. 187–188.)

“ ‘ “An appellate court will ordinarily not consider procedural defects or [alleged] 

erroneous rulings, in connection with relief sought or defenses asserted, where an 

objection could have been, but was not, presented to the lower court by some appropriate 

method .... The circumstances may involve such intentional acts or acquiescence as to 

be appropriately classified under the headings of estoppel or waiver .... Often, however, 

the explanation is simply that it is unfair to the trial judge and to the adverse party to 

take advantage of an error on appeal when it could easily have been corrected at the 

trial.’ ” [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589–590.)22

A. Failure to Object to an Expert Witness

The forfeiture rule has been applied to an appellant’s failure to object to the 

qualifications of an expert witness at trial, and then attempting to raise a new objection to 

the expert’s testimony on appeal. (People v. Doolin (2009) 45 Cal.4th 390, 448; People 

22 “In this context, the terms ‘waiver’ and ‘forfeiture’ have long been used 

interchangeably. The United States Supreme Court ... observed, however: ‘Waiver is 

different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of 

a right, waiver is the “intentional relinquishment or abandonment of a known right.” 

[Citations.]’ [Citation.]” (People v. Saunders, supra, 4 Cal.5th at p. 590, fn. 6.)
45

v. Panah (2005) 35 Cal.4th 395, 477–478; People v. Farnam (2002) 28 Cal.4th 107, 

162.)

In People v. Nwafor (1996) 46 Cal.App.4th 39, the prosecutor called an expert 

witness to testify in a child molestation case. The expert had a doctorate in 

developmental psychology and over 10 years of experience working with child 

molestation victims. Defense counsel said he was satisfied the court would find that she 

was qualified to testify as an expert and did not object. On appeal, however, the 

defendant argued for the first time that the expert was not qualified, and the trial court 

improperly allowed her to testify. Nwafor held the defendant’s contention was “frivolous 

and, since no objection was made in the trial court, untimely. [Citation.]” (Id. at p. 47.)

In People v. Bolin (1998) 18 Cal.4th 297, the prosecutor called a criminalist to 

testify about his review of photographs of a homicide scene. The criminalist testified to 

his opinion about the positions of the victims’ bodies when they were shot, based on his 

analysis of the blood spatter and drips shown in the photographs. On appeal, the 

defendant argued for the first time that the criminalist was not qualified to testify as an 

expert, his opinions were inadmissible because he did not personally investigate the 

crime scene, and the testimony was prejudicial under Evidence Code section 352. Bolin

held that “[s]ince [the defendant] failed to make these objections at trial, the issue is 

waived. [Citations.]” (Bolin, at p. 321.)

In People v. Farnam, supra, 28 Cal.4th 107, a criminalist testified as a prosecution 

expert on blood spatters, reviewed photographs of the homicide scene, and gave his 

opinion about the sequence of events and length of time leading to the victim’s sexual 

assault and murder. (Id. at p. 161.) At trial, defense counsel objected to the criminalist’s 

blood spatter testimony “as assuming facts not in evidence, speculative, and conclusory. 

But counsel affirmatively stated they had no objection if [the criminalist] were to 

‘reconstruct the way the crime may have occurred’ and did not challenge [the 

criminalist’s] qualifications to provide expert opinion on blood spatters.” (Id. at p. 162) 
46

On appeal, however, the defendant argued for the first time that the criminalist “was not 

qualified to render an expert opinion on blood spatters [citation] and that therefore his

conclusions as to the sequence of events were conjectural and speculative.” (Id. at 

pp. 161–162.) Farnam rejected the defendant’s appellate claim because “[a]t most, 

[defense] counsel objected to [the criminalist’s] qualifications with respect to estimating 

the amount of time elapsing from the start to the finish of the attack on the victim. 

Consequently, the defendant’s challenges to [the criminalist’s] testimony regarding blood 

spatters and crime scene reconstruction have been forfeited. [Citations.]” (Id. at p. 162.)

In People v. Panah, supra, 35 Cal.4th 395, the defendant objected to a 

hypothetical question posed to the prosecution’s forensic serologist. During a sidebar 

hearing on that objection, “defense counsel disparaged [the serologist’s] qualifications 

but the reason he sought [an Evidence Code section] ‘402 hearing’ was because he 

claimed the attempted hypothetical question amounted to a ‘new theory.’ ” (Id. at 

p. 477.) The trial court denied the request, stated it was satisfied the witness was an 

expert, and held defense counsel could cross-examine him about his opinions. (Ibid.) On 

appeal, the defendant claimed the trial court erroneously denied his motion for a hearing

pursuant to Evidence Code section 402 about the expert’s qualifications to testify to his 

opinions. Panah held the defendant forfeited this argument because “[t]he record 

reveals ... that [the] defendant never made such a request” (Panah, at p. 477), he only 

requested an evidentiary hearing because of an objection to a particular hypothetical 

question, and concluded that the “[d]efendant’s failure to have challenged [the 

serologist’s] expert qualifications in the trial court forfeits his claim. [Citation.]” (Id. at

p. 478.)

B. The People Forfeited Review of Their Appellate Claim

It is clear that during the entirety of the proceedings in this case, the People never 

raised the broad objection that is being asserted in this appeal in either the written 

opposition to Rodriguez’s diversion motion or at the two hearings on that motion – that 
47

only a psychiatrist or licensed psychologist is a “qualified mental health examiner” who 

may testify in support of any diversion motion brought under section 1001.36.

Instead, the People’s objections at the diversion hearing were based on the 

allegations in Rodriguez’s motion that he suffered from Alzheimer’s dementia, and that it 

was a mental disorder that qualified him for diversion. In response to Rodriguez’s 

motion, the People argued that Alzheimer’s dementia was a medical diagnosis, and that 

only a physician, and Ms. Alves-McAuley, as an LCSW, could make or testify about 

whether an Alzheimer’s diagnosis supported a diversion motion.

As in Nwafor, Bolin, Farnam, and Panah, the People have raised a new objection 

to the expert’s testimony in this appeal that was not made before the trial court and has 

thus forfeited appellate review of this claim.

In response to Rodriguez’s appellate claim of forfeiture, the People conceded in 

their reply brief and at oral argument that they did not raise this issue at the diversion 

hearing or argue that a social worker or LCSW could never testify as a qualified mental 

health examiner under section 1001.36. However, the People assert this court must still 

address the new issue raised on appeal because it simply presents a question of law based 

on undisputed facts.

The People primarily rely on People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman) in 

support of this assertion. In Yeoman, the defendant objected at voir dire that the People 

were improperly using peremptory challenges to exclude African-Americans from the 

jury in violation of People v. Wheeler (1978) 22 Cal.3d 258. The trial court made factual 

findings and held the defendant failed to make a prima facie case under Wheeler. On 

appeal, the defendant renewed his Wheeler arguments and, for the first time on appeal, 

asserted an equal protection claim based on Batson v. Kentucky (1986) 476 U.S. 79. The 

People claimed the defendant waived any appellate claim of Batson error because he 

failed to raise it during voir dire. (Yeoman, supra, 31 Cal.4th at pp. 115–116.)

Yeoman held that the defendant did not waive the Batson argument:
48

“[W]e believe that to consider defendant’s claim under Batson ... is more 

consistent with fairness and good appellate practice than to deny the claim 

as waived. As a general matter, no useful purpose is served by declining to 

consider on appeal a claim that merely restates, under alternative legal 

principles, a claim otherwise identical to one that was properly preserved 

by a timely motion that called upon the trial court to consider the same 

facts and to apply a legal standard similar to that which would also 

determine the claim raised on appeal. Defendant’s Batson claim is of that 

type. His motion under Wheeler ... required the trial court to conduct the 

same factual inquiry required by Batson into the possibly discriminatory 

use of peremptory challenges, and to apply a standard identical to Batson’s

for determining whether [the] defendant had stated a prima facie case. 

[Citation.] Under these circumstances, the Batson claim is properly 

cognizable on appeal by analogy to the well-established principle that a 

reviewing court may consider a claim raising a pure question of law on 

undisputed facts. [Citations.] While [the] defendant does dispute the trial 

court’s resolution of the factual issues underlying his Batson claim (i.e., 

whether he stated a prima facie case and whether the prosecutor’s 

explanation was adequate), the same factual issues are properly before us 

already because of [the] defendant’s timely Wheeler motion. Under these 

circumstances, to consider the Batson claim entails no unfairness to the 

parties, who had an opportunity to litigate the relevant facts and to apply 

the relevant legal standard in the trial court. Nor does it impose any 

additional burden on us, as the reviewing court. [¶] Accordingly, we may 

properly consider [the] defendant’s Batson claim on the merits. Doing so, 

we conclude it fails for the same reason his Wheeler claim fails.” (Yeoman, 

supra, 31 Cal.4th at pp. 117–118, italics added, fn. omitted.)

We find Yeoman does not support the People’s claim that we must address the 

admittedly new challenge to the expert it has raised in this appeal. In contrast to Yeoman, 

the People have not raised a claim, under alternative legal principles, that is “otherwise 

identical to one that was properly preserved by a timely motion that called upon the trial 

court to consider the same facts and to apply a legal standard similar to that which would 

also determine the claim raised on appeal.” (Yeoman, supra, 31 Cal.4th at p. 117.) 

Instead, the People have raised a completely different argument that was never addressed 

by either the court or Rodriguez at the diversion hearing.

Next, as the People concede, section 1001.36 does not define a “qualified mental 

health professional,” and the People’s arguments about what type of expert falls within 
49

that phrase are based on analogizing the diversion statute to other unrelated statutory 

proceedings. There is thus no argument that the court issued an order in this case that 

was facially void as a matter of law.

Third, the People’s attempt to raise a new issue in this particular case illustrates 

the importance of why a party must comply with Evidence Code section 353 and raise a 

timely objection before the trial court. “[A] specifically grounded objection” that a social 

worker or LCSW could never testify as a qualified mental health examiner in any 

diversion hearing would have allowed “the trial judge to consider excluding the

evidence,” and “the proponent of the evidence to lay additional foundation, modify the 

offer of proof, or take other steps designed to minimize the prospect of reversal. 

[Citation.]” (People v. Morris, supra, 53 Cal.3d at pp. 187–188; People v. Partida, 

supra, 37 Cal.4th at p. 434.)

As demonstrated above, the People’s repeated objections to Ms. Alves-McAuley’s 

testimony were based on the nature of Rodriguez’s diversion motion – that he was 

diagnosed with Alzheimer’s dementia, it was a medical disease that could only be 

diagnosed by a physician and, as a result, only a physician could testify in support of 

Rodriguez’s motion. When the court overruled that objection, the People argued 

Ms. Alves-McAuley’s testimony violated the hearsay rule because she was relying on the 

records from Rodriguez’s treating physicians that stated they had diagnosed him with 

Alzheimer’s dementia. The court properly overruled that objection and correctly found 

that section 1001.36 defined a diversion hearing as an “informal” proceeding and 

permitted the introduction of medical reports and other “reliable hearsay.”

The People then argued that Alzheimer’s dementia was no longer defined as a 

“mental disorder” in the DSM-5 and, even if it was, it was incurable and thus not subject 

to treatment. The court correctly overruled these objections, found that Alzheimer’s 

dementia was still listed in DSM-5 under the alternate heading of neurocognitive 

disorders, and such a person could benefit from the appropriate treatment.
50

In the course of raising these objections, the People did not argue that an LCSW

could never be considered a qualified mental health expert who could offer an opinion in 

support of any diversion motion brought under section 1001.36. If such an objection had 

been raised, the trial court could have held a hearing on that particular issue and, if it was 

inclined to grant the motion, Rodriguez’s attorney may have decided to request a 

continuance to call one of his treating physicians to testify in support of the motion.

Given the People’s failure to raise the issue, Rodriguez did not have the 

opportunity to consider an alternate strategy to ensure the motion would be properly 

supported. “ ‘ “[I]t is unfair to the trial judge and to the adverse party to take advantage 

of an [alleged] error on appeal when it could easily have been corrected at the trial.” ’ 

[Citation.]” (People v. Saunders, supra, 5 Cal.4th at p. 590.) The People thus forfeited 

appellate review of its new challenge to the expert testimony of Ms. Alves-McAuley.23

C. The Court’s Finding that Rodriguez Would Benefit from Treatment

Finally, the People assert on appeal that the trial court failed to make a finding that 

“the opinion of a qualified mental health expert established that ‘symptoms of the mental 

disorder motivating the criminal behavior would respond to mental health treatment’ as 

required by section 1001.36, subdivision (b)(1)(C).” The People complain the court 

improperly granted diversion simply because of Rodriguez’s satisfactory conduct after he 

was released from custody in this case and assert a diversion order cannot be based on “a 

finding that the symptoms motivating criminal behavior are amendable to treatment 

based on performance while out of custody, only on the opinion of a qualified mental 

23 We note that in granting the diversion motion, the trial court stated that it was 

also finding Rodriguez suffered from a mental disorder based on Corizon’s mental health 

assessment, conducted shortly after he was arrested, that Rodriguez suffered from bipolar 

disorder. The district attorney never challenged the admission of Corizon’s report, raised 

a hearsay objection to the court’s consideration of the report, or argued the report’s 

conclusions were invalid because Rodriguez was examined by a licensed mental health 

clinician.
51

health expert.” The People argue the court did not rely on any expert opinion to find 

Rodriguez established the statutory elements for diversion, and it improperly based the 

order on “his remaining crime free while out of custody.”

The People have misstated the nature of the court’s findings. At the diversion 

hearing, the district attorney argued that Rodriguez could not benefit from treatment 

because Alzheimer’s dementia was a fatal and incurable disease. However, section 

1001.36, subdivision (b)(1)(C) does not require proof that the mental disorder would be 

cured by treatment, but instead that “the defendant’s symptoms of the mental disorder

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

added.)

Indeed, the court’s finding was consistent with Ms. Alves-McAuley’s report filed 

in support of Rodriguez’s motion, where she acknowledged that he suffered from “an 

incurable and worsening disease” but, in her opinion, “his family and doctors have found 

a way to work together and manage his symptoms. I believe that continued medication 

management as well as the support of his family will maintain Mr. Rodriguez’s current 

stability and allow him to safely remain in his home and avoid reoffending.” (Italics 

added.)

The court correctly overruled the district attorney’s objections, found Rodriguez 

would benefit from treatment for his symptoms, and there was sufficient specificity in the 

proposed plan for him to continue to receive the same care provided by his physician and 

family that started after he was released from custody in March 2018 – continued close 

supervision at home to ensure he did not wander away or resume drinking, compliance 

with prescribed medications that had already stabilized his condition, and regular status 

reports from his primary care physician. The court did not grant the diversion motion 

simply because Rodriguez had remained crime free prior to the diversion hearing, but 

instead relied on a plan that had already started to address Rodriguez’s symptoms.
52

We thus conclude that the People forfeited review of its new claim about the 

definition of a “qualified mental health expert,” and affirm the trial court’s order on 

October 4, 2017, that granted Rodriguez’s motion for pretrial diversion.

DISPOSITION

The court’s order of October 4, 2019, granting Rodriguez’s motion for pretrial 

diversion, is affirmed.

Rodriguez’s motion filed on April 20, 2021, to “dismiss [this] appeal as moot” is 

itself dismissed as moot.

POOCHIGIAN, J.

I CONCUR:

LEVY, ACTING P.J.
SNAUFFER, J., Concurring and Dissenting.

I agree with the majority’s conclusion that the People forfeited the claim they 

raise on appeal. However, this appeal must be dismissed without reaching the merits for 

lack of jurisdiction because the order appealed from is not appealable by the People. 

“ ‘The prosecution’s right to appeal in a criminal case is strictly limited by statute. 

[Citation.] Long standing authority requires adherence to these limits even though the 

“the People may thereby suffer a wrong without a remedy.” [Citation.] The 

circumstances allowing a People’s appeal are enumerated in [Penal Code]1

section 1238.’ ” (In re Anthony (2015) 236 Cal.App.4th 204, 211 (Anthony), quoting 

People v. Chacon (2007) 40 Cal.4th 558, 564; see also People v. Drake (1977) 19 Cal.3d 

749, 754, superseded in part by statute as stated in People v. Statum (2002) 28 Cal.4th 

682 [“ ‘The Legislature has determined that except under certain limited circumstances 

the People shall have no right of appeal in criminal cases’ [Citation]. Those 

circumstances are enumerated in section 1238.”].) “ ‘ “[C]ourts are precluded from so 

interpreting section 1238 as to expand the People’s right of appeal into areas other than 

those clearly specified by the Legislature.” ’ ” (Anthony, at p. 211.) 

The People do not state any grounds of appealability under section 1238 in either 

their notice of appeal or opening brief. Instead of relying on statutory grounds, the 

People claimed in their notice of appeal the order granting diversion is appealable 

“pursuant to People v. Wright (2002) 99 Cal.App.4th 201, 204 [(Wright 2002)] and Cal. 

Rule of Court 8.304.”2 Their opening brief’s statement of appealability, which reads as 

follows, only cites case law:

“An ‘order granting diversion is analogous to a final judgment in a 

“special proceeding” [(People v. Murphy (1969) 70 Cal.2d 109, 115 

1 Undesignated statutory references are to the Penal Code. 

2 California Rules of Court, rule 8.304 sets forth the rules for filing appeals and 

does not enumerate grounds for appeal. 
2.

(Murphy))], and hence is final for the purposes of appellate review. “... It 

is not the form of the decree but the substance and effect of the adjudication 

which is determinative.’ ” ’ (People v. Mazurette (2001) 24 Cal.4th 789, 

797 [(Mazurette)], quoting People v. Wright (1975) 47 Cal.App.3d 490, 

492 [(Wright (1975))].) An order granting pretrial diversion is thus 

appealable by the People. (People v. Wright (2002) 99 Cal.App.4th 201, 

204 [Wright (2002)]; see also People v. Alonzo (1989) 210 Cal.App.3d 466, 

468 [(Alonzo)] in which this court held an order granting pretrial diversion 

was properly appealable by the People under Wright (1975).” 

It was not until their supplemental brief that the People finally contended their 

appeal was authorized under section 1238, subdivision (a)(1) and (a)(8). They stated: 

“Granting diversion is essentially a conditional or delayed termination of the action and 

setting aside of the complaint or information. Although the appeal is available upon the 

actual dismissal of the case, that option was also available in 1975 when the Wright 

[(1975)] case was decided and the court still determined it to be a final order and 

appealable by the People.” 

I will first address why section 1238 does not authorize the People’s appeal from 

an order granting pretrial mental health diversion issued under section 1001.35, et seq. I 

will then demonstrate how the cases upon which the People rely also do not allow this 

appeal.

A. Section 1238

Section 1238, subdivision (a), provides in relevant part:

“(a) An appeal may be taken by the [P]eople from any of the 

following: 

“(1) An order setting aside all or any portion of the indictment, 

information, or complaint.

“(8) An order or judgment dismissing or otherwise terminating all or 

any portion of the action including such an order or judgment after a verdict 

or finding of guilty or an order or judgment entered before the defendant 

has been placed in jeopardy or where the defendant has waived jeopardy.” 
3.

The order appealed from here plainly does not fall under either of these 

subdivisions. The order appealed from is an order granting diversion—that is all the 

order does. The order does not set aside the information (subd. (a)(1)) or dismiss or 

terminate any portion of the action (subd. (a)(8)). 

The majority cites to People v. McClaurin (2006) 137 Cal.App.4th 241 

(McClaurin), which held that when determining whether an order is appealable under 

section 1238, subdivision (a)(1), “courts consider the form, substance and effect of the 

order.” (Id. at p. 247.) “While an order may not be specifically listed as an appealable 

order under section 1238, if the substance of the order has the purpose and ultimate effect

of setting aside all or any portion of the ... information[,] then the order is appealable 

under section 1238, subdivision (a)(1).” (Ibid., italics added.) As will be discussed 

below, this holding is inapplicable here. 

An order granting pretrial mental health diversion does not have “the purpose and 

ultimate effect” of setting aside the information (or complaint or indictment). Its only 

purpose and effect are to place the defendant on diversion—that’s it. An order granting 

diversion can never, by itself, set aside the information or have the effect of setting aside 

the information. Dismissing the charges—which effectively sets aside the information—

requires the trial court to enter a subsequent order discharging the defendant from 

diversion and dismissing the charges, and that subsequent order is the one that is arguably 

appealable under section 1238, subdivisions (a)(1) and (a)(8). 

Conceptualized differently, an order granting diversion merely starts a defendant 

on the road toward possibly getting the charges dismissed—and the information 

effectively set aside. When the time comes to discharge the defendant from diversion 

and dismiss the charges because he or she has successfully completed his or her diversion 

program, a subsequent order must be entered to that effect; the diversion order cannot 

effectuate a dismissal of the charges. The majority correctly notes the trial court must 
4.

discharge the defendant and dismiss the charges once the defendant has successfully 

completed diversion. (§ 1001.36, subd. (e).) However, the diversion order does not 

effectuate the dismissal—a subsequent order does. Unless the subsequent dismissal order 

is entered, the charges will never be dismissed. 

It is thus clear that (1) the order granting diversion and (2) the subsequent order 

discharging the defendant and dismissing the charges do not have the same purpose and 

ultimate effect of setting aside the information. These two orders serve entirely different 

purposes in the statutory mental health diversion scheme (§ 1001.35, et seq.), and the 

majority fails to recognize this.

A somewhat analogous example in the civil law arena is the rule that one cannot 

appeal from an order granting a motion for summary judgment, but only from the 

summary judgment entered after the order. (Saben, Earlix & Associates v. Fillet (2005) 

134 Cal.App.4th 1024, 1030 [“[A] summary judgment is appealable, but an order 

granting summary judgment is not.”].) Just as in the criminal law arena, it is a 

jurisdictional axiom in the civil law arena that appellate courts cannot entertain appeals 

taken from nonappealable judgments or orders. (City of Calexico v. Bergeson (2021) 

64 Cal.App.5th 180, 189; see Farwell v. Sunset Mesa Property Owners Assn, Inc. (2008) 

163 Cal.App.4th 1545, 1550 [“question whether an order is appealable goes to the 

jurisdiction of an appellate court, which is not a matter of shades of grey but rather of 

black and white”].) It does not matter that in summary judgment proceedings the 

judgment entered hardly ever adds anything substantive to what is stated in the order 

granting the motion because it is a jurisdictional axiom, not a mere technicality to be 

disregarded. And in the mental health diversion context, there is an obvious substantive 

difference between an order granting diversion and the subsequent order dismissing the 

charges in that they have distinct purposes and effects. 
5.

The facts of McClaurin, supra, 137 Cal.App.4th 241 also are distinguishable. 

That case involved the trial court’s grant of a defendant’s motion for specific 

performance of a plea agreement from which the People withdrew. (Id. at pp. 245—246.) 

“[W]hen the court ordered specific performance, it dismissed all the pending charges ... 

and amended the complaint to include [a lesser charge].” (Id. at p. 247.) Thus, a single 

order alone resulted in the dismissal of the charges. The Court of Appeal held that order 

was appealable under section 1238, subdivision (a)(1), because it “had the effect of 

‘setting aside all or any portion of the ... complaint.’ ” (Id. at pp. 247—248.) That was 

the correct decision there, but the situation here is significantly different. Again, an order 

granting pretrial mental health diversion does not have the purpose and ultimate effect of 

dismissing the charges (and setting aside the information). Its only purpose and effect are 

to start the defendant on diversion, with the possibility that the charges could one day be 

dismissed—effectively setting aside the complaint—with a subsequent dismissal order 

upon successfully completing diversion. 

In sum, the majority fails to recognize the difference in the purpose and ultimate 

effect of (1) an order granting diversion and (2) an order discharging the defendant from 

diversion and dismissing the charges upon successful completion of diversion. To say 

these orders have the same purpose and ultimate effect is to say that the order granting 

diversion operates as a dismissal order. An order granting diversion never acquires the 

capacity to effectuate a dismissal; that being the case, an order granting diversion does 

not fall under subdivision (a)(1) or (a)(8) of section 1238. 

It is within the Legislature’s province to define the People’s appellate rights. If 

the Legislature wanted to allow the People to appeal an order granting pretrial mental 

health diversion, it could easily have added that order to the list of appealable orders in 

section 1238, subdivision (a). The Legislature did not do that, and it is an unwarranted 
6.

invasion of the Legislature’s province for this court to allow the People to appeal from 

this order. 

B. Case law

The cases the People cite in their opening brief do not alter the conclusion that the 

order appealed from here is not appealable. Their primary case is Wright (1975), supra, 

47 Cal.App.3d 490. In that case, “the defendant was charged with a nondivertable drug 

offense but found guilty of a lesser crime that, had it been the original charge, would have 

qualified the defendant for pretrial diversion. After trial, the defendant requested 

diversion [under section 1000] and the trial court granted the request. The People 

appealed, claiming the trial court had acted in excess of its jurisdiction. At the threshold, 

the appellate court was required to decide whether the People could appeal the lower 

court’s order granting diversion. It found in the affirmative, reasoning ‘the order granting 

diversion is analogous to a final judgment in a “special proceeding” [(Murphy, supra, 

70 Cal.2d at p. 115)], and hence is final for the purposes of appellate review. “... It is not 

the form of the decree but the substance and effect of the adjudication which is 

determinative.” ’ ” (Mazurette, supra, 24 Cal.4th at p. 797, italics omitted.)

The Wright (1975) court did not mention section 1238, which at the time read in 

relevant part: 

“(a) An appeal may be taken by the [P]eople:

“(1) From an order setting aside the indictment, information, or 

complaint.

“(8) From an order or judgment dismissing or otherwise terminating 

the action before the defendant has been placed in jeopardy or where the 

defendant has waived jeopardy.” (Stats. 1970, ch. 1289, § 1.)3

3 Section 1238 was not amended again until 1978. (Stats. 1978, ch. 1359, § 2.)
7.

Note that these subdivisions are substantively the same as they are now, with a 

slight difference in subdivision (a)(8) not relevant here. 

In my view, the appealability question in Wright (1975) was incorrectly decided, 

because that case involved a People’s appeal from an order granted in a criminal 

proceeding, yet the Court of Appeal ignored section 1238 and instead concluded by 

analogizing to statutes in the Code of Civil Procedure governing civil appeals from final 

judgments that the order was appealable. As Wright (1975) involved a criminal 

proceeding, the People’s right to appeal from anything in that case was strictly governed 

by the Penal Code. It is perplexing that the Wright (1975) court looked to the Code of 

Civil Procedure for a ground to authorize the criminal appeal before it. 

To understand how the Wright (1975) court reached the conclusion that it did, one 

must read Murphy, supra, 70 Cal.2d 109. Wright (1975) held the order appealed from in 

that case was analogous to a final order in a “special proceeding” without defining that 

term, instead providing a citation to Murphy. A close reading of Murphy reveals the error 

in the Wright (1975) court’s reliance on it to conclude a People’s appeal from an order 

granting diversion in a criminal proceeding is appealable. 

In Murphy, the defendant pleaded guilty to one felony count of possession of 

marijuana. (Murphy, supra, 70 Cal.2d at p. 113.) His then counsel “advised the court 

that he had reason to believe [Murphy] was eligible for the narcotics addict rehabilitation 

program, and requested that the criminal proceedings be adjourned and proceedings for 

civil commitment be initiated under Welfare and Institutions Code section 3051.” (Ibid.) 

The trial court agreed with the request and the prosecutor filed a petition for commitment 

the next day. (Ibid.) 

At the hearing on the petition, Murphy’s new counsel moved to withdraw the plea 

of guilty to the criminal charge, for an immediate jury trial on the issue of addiction, and 

to disqualify the judge by peremptory challenge. (Murphy, supra, 70 Cal.2d at pp. 113—
8.

114.) The trial court denied the motions, and after hearing evidence found Murphy to be 

in imminent danger of addiction and ordered him committed to the rehabilitation 

program. (Id. at p. 114.) The same day, Murphy filed a notice of appeal from the order 

of commitment. (Ibid.)

On appeal, Murphy challenged the commitment order, and also raised two 

contentions challenging his conviction for possession of marijuana. (Murphy, supra, 

70 Cal.2d at p. 114.) The Supreme Court ruled Murphy could not litigate those two 

challenges to the conviction in that appeal. (Ibid.) The Court explained Murphy could 

not “use his right to appeal from the order of civil commitment as yet another vehicle to 

attack his criminal conviction. [Citations.] Both in form and in substance, the civil 

commitment proceedings are wholly distinct from the criminal prosecution. The 

commitment order is appealable only because it is deemed to be a final judgment in a 

‘special proceeding’ (Code Civ. Proc., § 963, subd. 1; [citation]), and the contours of that 

proceeding delimit the scope of its review: ‘in such appeal he may base error only on the 

lack of jurisdiction of the trial court to institute commitment proceedings or the invalidity 

of the proceedings culminating in the order itself.’ ” (Id. at pp. 114—115, fn. omitted.) 

The Court also explained the available routes under the Penal Code for Murphy to 

challenge his criminal conviction. (Id. at 114.)

Former Code of Civil Procedure section 963, which governed appeals from the 

superior court, provided in part that an appeal may be taken “1. From a final judgment 

entered in an action, or special proceeding, commenced in a superior court, or brought 

into a superior court from another court.” (Former Code Civ. Proc., § 963, subd. 1, 

repealed by Stats. 1968, c. 385, p. 811, § 1; Draus v. Alfred M. Lewis, Inc. (1968) 

261 Cal.App.2d 485, 488.) The commitment order in Murphy was appealable under this 

former provision of the Code of Civil Procedure because it was issued in the course of a 

civil proceeding—more specifically, a “special proceeding.” As the Murphy court stated: 
9.

“[T]he civil commitment proceedings are wholly distinct from the criminal prosecution.” 

(Murphy, supra, 70 Cal.2d at p. 114—115.) By contrast, any challenge to the criminal 

conviction was appealable under the Penal Code because it resulted from criminal 

proceedings. In short, Murphy involved a criminal proceeding and a separate civil 

proceeding, and the Supreme Court’s holding implied that a challenge to the latter did not 

necessarily subsume a challenge to the former, at least in the particular circumstances of 

that case. 

The defendant in Wright (1975), supra, 47 Cal.App.3d 490, was granted diversion 

under provisions of the Penal Code, not the Welfare and Institutions Code or any other 

code. (Id. at p. 492.) Nevertheless, the Court of Appeal there impliedly concluded that 

case involved “special proceeding[s]”—or at least something analogous to “special 

proceedings”—as defined by the Code of Civil Procedure. (Ibid.) This was clearly 

erroneous. I also note the version of Code of Civil Procedure section 963 that existed at 

the time Murphy was decided was repealed in 1968.

To clarify the distinction between the cases: Murphy, Wright, and Rodriguez’s 

case each involved appeals from orders granting diversion, but this similarity is 

inconsequential. The crucial distinction is that Murphy involved an appeal from a 

diversion order entered in a civil proceeding governed by the appealability rules of the 

Code of Civil Procedure. In contrast, Wright (1975) and Rodriguez’s case involve 

appeals from a diversion order entered in a criminal proceeding governed by the Penal 

Code’s appealability rules, namely section 1238. Neither the Wright (1975) court nor the 

majority in this case recognize this distinction. 

Another crucial aspect of Murphy, supra, 70 Cal.2d 109, that the Wright (1975), 

supra, 47 Cal.App.3d at p. 492, court failed to note is that Murphy involved an appeal by 

the defendant, not the People. Thus, even if it were assumed for sake of argument that 

the proceedings in Wright (1975) involved “special proceedings” under the Code of Civil 
10.

Procedure, the Court of Appeal there failed to explain how the diversion order was 

appealable by the People. Indeed, the Wright (1975) court did not state any statutory

grounds that allowed the People’s appeal of the diversion order in that case. 

For the foregoing reasons, I do not find that Wright (1975) is valid authority 

regarding the appealability of diversion orders under the Penal Code. The order appealed 

from in Wright (1975) did not satisfy any section 1238 ground; indeed, the court there did 

not even try to show that it did. Instead, the Wright (1975) court erroneously concluded 

the order appealed from there was authorized by drawing an analogy to the Code of Civil 

Procedure. In doing so, the Wright (1975) court essentially created a new, non-statutory 

ground of appeal for the People, which it had no power to do. 

None of the other cases the People cited in their opening brief regarding 

appealability affect my analysis. In Mazurette, supra, 24 Cal.4th 789, the Supreme Court 

briefly discussed Wright (1975), supra, 47 Cal.App.3d at p. 492, to distinguish it on its 

procedural posture. There, the defendant pleaded no contest to drug possession after the 

trial court denied her motion to suppress evidence. (Mazurette, at p. 791.) Entry of 

judgment was deferred pursuant to section 1000 et seq., and she entered a drug 

rehabilitation program. (Ibid.) She immediately appealed the trial court’s decision 

denying her suppression motion, and the Court of Appeal dismissed her appeal for lack of 

appealability. The Supreme Court granted review to decide whether sections 1000—

1000.4 preclude a defendant from immediately appealing the trial court’s denial of a 

suppression order.

The Mazurette defendant cited Wright (1975), supra, 47 Cal.App.3d at p. 492, as 

one of the cases she contended required the court “to take a functional approach to decide 

whether a particular order is appealable.” (Mazurette, supra, 24 Cal.4th at p. 797.) The 

Supreme Court stated Wright (1975) was of no assistance to Mazurette because Wright 

(1975) “concerned the ability of the People to appeal pursuant to section 1238, rather 
11.

than a defendant’s right to appeal under section 1237[.]” (Ibid.) Thus, the Supreme 

Court distinguished Wright (1975) based on the party appealing. The Supreme Court did 

not endorse the substantive reasoning of Wright (1975). Also, it is unclear why the 

Supreme Court stated that Wright (1975) concerned the People’s ability to appeal under 

section 1238, when in fact the Wright (1975) decision regarding appealability was not at 

all statutorily based. 

Finally, neither Wright (2002), supra, 99 Cal.App.4th 201, nor Alonzo, supra, 

210 Cal.App.3d 466, is persuasive because they simply cite to Wright (1975), supra, 

47 Cal.App.3d 490, without additional analysis. In Wright (2002), the defendant was 

convicted of drug possession offenses and the trial court granted his motion to defer entry 

of judgment. (Wright (2002), at p. 203.) The People appealed. (Ibid.) In addressing the 

question of appealability, the Court of Appeal began by quoting the rule that a judgment 

or appeal is not appealable unless expressly made so by statute. (Id. at pp. 203—204.) 

However, in giving an applicable statutory basis for the People’s appeal, the Court of 

Appeal concluded the People were entitled to appeal from the trial court’s order under the 

reasoning of Wright (1975). (Id. at p. 204.) Similarly, in Alonzo, supra 210 Cal.App.3d 

466, the defendant was convicted of drug possession and granted diversion for 

rehabilitation under section 1000, and the People appealed the order granting diversion. 

(Id. at p. 468.) The Court of Appeal relied on Wright (1975) in concluding the People 

could appeal the order. (Ibid.) 

In conclusion, I do not believe that Wright (1975), supra, 47 Cal.App.3d 490,

provides a basis for concluding the People may appeal from an order granting mental 

health diversion under section 1001.35, et seq. Additionally, none of the other three 

cases the People rely on that cite Wright (1975) are helpful to the People. The 

fundamental axiom should endure: “ ‘The prosecution’s right to appeal in a criminal case 

is strictly limited by statute.’ ” (Anthony, supra, 236 Cal.App.4th at p. 211.) 
12.

C. Procedural quandaries

Finally, I am concerned about the procedural and administrative issues that may 

occur if the People can appeal from pretrial mental health diversion orders. The majority 

does not address what effect the filing of a People’s appeal from an order granting 

diversion will have. Is the diversion order stayed? Does the defendant have to comply 

with the terms of his or her diversion program while the appeal is pending? Does the trial 

court retain jurisdiction to hold violation hearings or to discharge a defendant who has 

successfully completed diversion and dismiss his or her case? Would the People be able 

to essentially preclude effective court ordered diversion by simply filing an appeal? The 

problems these uncertainties are likely to cause judges, counsel, and, most regrettably, 

divertible defendants with mental illnesses, are something to be avoided. Perhaps the 

reason the Legislature has not given guidance on these uncertainties is because it did not 

intend for orders granting diversion to be appealable. I would hope the Legislature will 

provide clarification on the appealability of pretrial mental health diversion orders. 

SNAUFFER, J.