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Filed 3/25/24 P. v. Wolpert CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ALEXANDER WOLPERT,

Defendant and Appellant.

 A166450

 

 (San Mateo County 

 Super. Ct. No. 20SF012801A)

David Alexander Wolpert was charged with making criminal threats 

while personally using a deadly weapon. (Pen. Code, §§ 422, subd. (a), 12022, 

subd. (b)(1); undesignated statutory references are to this code.) Before trial, 

he requested mental health diversion in lieu of prosecution. (§ 1001.36.) 

Although he was diagnosed with delusional disorder, he later withdrew his 

request due to counsel’s advice that a pending charge in another county 

presented a logistical hurdle for treatment. A jury later found him guilty,

and the trial court imposed a sentence of three years. On appeal, he argues 

his counsel rendered ineffective assistance by advising him to withdraw his 

diversion request. We agree and conditionally reverse the judgment and 

remand for the court to consider his eligibility for diversion. 

BACKGROUND

In November 2020, Wolpert drove to the headquarters of Facebook,

upset it suspended his account. Upon arriving at a parking lot, he 
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approached a security guard. He said if the guards did not get their “shit 

together,” he was going to kill them. He encouraged the guard to “report it,” 

brandished a pocket knife with the blade open, started fidgeting with the 

knife, and said he was serious. After emphasizing he was not joking, he 

warned “If there’s a third time,” “ ‘[s]ecurity guards are going to die.’ ” Before 

driving away, he said “ ‘security needs to fix it within a month’ ” or else he 

would come back to kill them. In his report to police, the guard said Wolpert 

appeared to be experiencing mental problems at the time.

The San Mateo County District Attorney charged Wolpert with felony 

criminal threats (§ 422, subd. (a)), alleging that he personally used a deadly 

weapon (§ 12022, subd. (b)(1)) and committed the offense while on bail for 

another offense in Sacramento County (§ 12022.1). Based on concerns 

defense counsel expressed regarding competency to stand trial, the trial court 

issued an order of commitment in March 2021. A correctional facility 

ultimately determined Wolpert was not competent — his statements did not 

relate to reality, he had poor insight and judgment, tenuous impulse control, 

and was overtly psychotic — and it retained him for additional treatment. 

Proceedings resumed after Wolpert was found competent to stand trial in 

June 2021.

In March 2022, Wolpert applied for mental health diversion. 

(§ 1001.36.) A psychiatrist diagnosed him with a delusional disorder,

emphasizing antipsychotic medication was medically appropriate and 

clinically indicated. A social worker report noted Wolpert was experiencing 

paranoia and delusions at the time of his offense, but he was not taking any 

antipsychotic medications at that time. A clinician also noted that, since 

“adhering to prescribed medications, Mr. Wolpert has demonstrated an 

increasingly goal directed thought process leading to a decrease in 
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circumstantial speech.” Wolpert waived his right to a speedy trial, consented 

to the diversion program, and expressed a desire to adhere to his psychotropic 

medication plan and continue receiving services at a mental health center in 

Sacramento — a place where he previously received treatment.

In opposition, the prosecutor argued Wolpert would be unable to 

comply with treatment due to pending charges in Sacramento County for 

attempted possession of a weapon of mass destruction (§ 11418, subd. (a))

that required his appearance. (Allegations related to that offense included 

him talking about government conspiracies that the Federal Bureau of 

Investigation would not investigate, distilling ammonia, and possessing 

several bottles of bleach, radiator fluid, ammonia, and surgical tubing.)

Wolpert’s counsel agreed and advised Wolpert he could not comply with 

diversion because he had an open case in Sacramento County. Wolpert 

subsequently withdrew his application and proceeded to a jury trial.

In a bifurcated trial, a jury convicted Wolpert of criminal threats and 

found true the deadly weapon allegation. The trial court found true 

allegations that he committed the offense while on bail — a finding that was 

subsequently stricken. The court denied probation, sentencing him to three 

years — the middle term of two years, plus an additional year for the 

personal use enhancement. He did not serve any time in prison because he 

was given 1,392 days of presentence custody credit — 696 days for time 

served and 696 conduct days.

DISCUSSION

Wolpert urges us to conditionally reverse his conviction and remand to 

allow an evaluation of his eligibility for mental health diversion. He contends 

he was a suitable candidate for diversion due to a mental health disorder that 

played a significant role in the commission of his offense. He argues his
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request to withdraw his application for pretrial diversion was the result of 

ineffective assistance. We agree.

“Pretrial diversion” is “the postponement of prosecution,” “at any point 

in the judicial process from the point at which the accused is charged until 

adjudication, to allow the defendant to undergo mental health treatment.” 

(§ 1001.36, subd. (f)(1).) Postponement may be temporary or permanent. 

(Ibid.) A defendant charged with a felony — as is the case here — may be 

diverted for a maximum period of two years. (Id., subd. (f)(1)(C)(i).) At the 

end of the diversion period, the court shall dismiss the charges that were the 

subject of the criminal proceedings if the defendant’s performance in 

diversion is satisfactory. (Id., subd. (h).) 

Courts must find a defendant is both eligible and suitable for diversion. 

(§ 1001.36, subds. (b)–(c).)1 A defendant is eligible for pretrial diversion if 

diagnosed with a mental disorder that was a significant factor in the 

commission of the charged offense. (§ 1001.36, subds. (b)(1)–(2).) Under 

1 At the time Wolpert first filed his mental health diversion application, 

the statute authorized a trial court to grant pretrial diversion if a defendant 

met all the following criteria: (A) defendant suffers from a mental disorder 

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

of Mental Disorders (DSM), as evidenced by the diagnosis from a qualified 

mental health expert; (B) the court is satisfied that the defendant’s mental 

disorder was a significant factor in the commission of the offense; (C) the 

qualified mental health expert opined defendant’s symptoms of the mental 

disorder motivated the criminal behavior and would respond to treatment; 

(D) the defendant consents to diversion and waives the right to a speedy trial; 

(E) defendant agrees to comply with treatment as a condition to diversion; 

and (F) the court is satisfied that the defendant will not pose an 

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

(Former § 1001.36, subd. (b)(1)(A)–(F); Stats. 2019, ch. 497, § 203, eff. Jan. 1, 

2020.) After Wolpert filed his appeal, the Legislature simplified the 

procedural process for obtaining pretrial diversion in Senate Bill No. 1223 

(2021–2022 Reg. Sess.). (Stats. 2022, ch. 735, § 1.) 
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recent amendments to the statute, there is a “presumption that the 

defendant’s diagnosed mental disorder was a significant factor in the 

commission of the charged crime.” (Sarmiento v. Superior Court (2024) 

98 Cal.App.5th 882, 891 (Sarmiento).) For defendants satisfying these 

requirements, the court must consider suitability for diversion: whether the 

symptoms would respond to treatment, whether the defendant agrees to 

comply with treatment, and whether the defendant will not pose an 

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

(§ 1001.36, subds. (c)(1), (3)–(4).) The court must be satisfied “that the 

recommended inpatient or outpatient program of mental health treatment 

will meet the specialized mental health treatment needs of the defendant.” 

(§ 1001.36, subd. (f)(1)(A)(i); Sarmiento, at p. 892.) 

Even if the defendant makes a prima facie showing regarding the

eligibility requirements, a trial court may nonetheless deny pretrial diversion 

if it finds the defendant or offense are not suitable for diversion. (People v. 

Qualkinbush (2022) 79 Cal.App.5th 879, 888.) Any exercise of this residual 

discretion must be consistent with the principles and purpose of the diversion 

statute — “a strong legislative preference for treatment of mental health 

disorders.” (Sarmiento, supra, 98 Cal.App.5th at pp. 892–893.) Indeed, the 

“Legislature intended the mental health diversion program to apply as 

broadly as possible.” (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

(Whitmill).) We review the parties’ arguments against the backdrop of this 

statutory framework.

I.

The Attorney General contends Wolpert’s appeal is moot because he 

has served his sentence and, in any event, cannot qualify for pretrial 

diversion after judgment has been entered. Not so.
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True, an appeal cannot be maintained if the issues have become moot 

by subsequent acts or events, or where reversal has no practical effect. 

(People v. DeLong (2002) 101 Cal.App.4th 482, 486.) But in cases in which 

defendants have satisfied their sentences by serving prison time and cannot 

obtain relief from imprisonment, determining whether an issue is 

moot includes “consideration of whether prejudicial consequences or 

disadvantageous collateral consequences can be ameliorated by a successful 

appeal.” (Id. at p. 487.) In those circumstances, appeals are not necessarily 

moot. Defendants are entitled to appeal the judgment to clear their names 

and “ ‘rid [themselves] of “the stigma of criminality.” ’ ” (Id. at pp. 487–489, 

italics omitted.)

That principle applies here. Wolpert cannot obtain relief from 

imprisonment because the trial court awarded him custody credits exceeding

his three-year term of imprisonment. But the collateral consequences of 

having a serious felony conviction on his record could be ameliorated if he 

was granted pretrial mental health diversion. (People v. DeLong, supra,

101 Cal.App.4th at p. 487.) Indeed, successful completion of pretrial 

diversion results in the dismissal of his criminal charges, and the arrest upon 

which diversion was based is deemed to never have occurred. (People v. 

Frahs (2020) 9 Cal.5th 618, 630–631 (Frahs); § 1001.36, subd. (h).) Thus, the 

appeal is not moot. None of the Attorney General’s cited authorities

persuade us otherwise.

We similarly reject the Attorney General’s assertion in reliance on 

Frahs that Wolpert is procedurally barred from obtaining pretrial diversion 

because his case has already been adjudicated. The circumstances in that 

case are distinguishable. Frahs addressed whether section 1101.36 applied 

retroactively to a defendant convicted of an offense before the statute went 
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into effect. (Frahs, supra, 9 Cal.5th at p. 624 [permitting defendants whose 

cases were not final on appeal and had no opportunity to request diversion to 

do so].) Moreover, it expressly rejected as “unconvincing” the same argument 

the Attorney General makes here. (Id. at p. 640 [statute’s definition of 

pretrial diversion “as the postponement of prosecution at any point of the 

judicial process ‘until adjudication’ ” did not prevent retroactive application 

of the statute].) Indeed, other courts have reversed judgments with 

directions to reconsider a defendant’s motion for pretrial mental health 

diversion after entry of a guilty or no contest plea. (See, e.g., People v. 

Whitmill, supra, 86 Cal.App.5th at pp. 1142, 1147; People v. Qualkinbush, 

supra, 79 Cal.App.5th at p. 883.) Accordingly, we reach the merits of 

Wolpert’s appeal.

II.

Wolpert argues his counsel rendered ineffective assistance by advising 

him to withdraw his pretrial diversion application because his pending 

Sacramento County case made compliance with diversion impossible. 

Wolpert contends his counsel’s representation fell below an objective 

standard of reasonableness under prevailing professional norms, resulting in 

prejudice — “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” (Strickland v. 

Washington (1984) 466 U.S. 668, 688, 694.) We agree.

First, when examining whether counsel’s performance was deficient, we 

generally defer to reasonable tactical decisions and presume “counsel acted 

within the wide range of reasonable professional assistance.” (People v. Mai

(2013) 57 Cal.4th 986, 1009.) But Wolpert has affirmatively established 

otherwise. (People v. Ledesma (2006) 39 Cal.4th 641, 745–746 [presuming

counsel’s performance falls within range of professional competence unless 
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defendant establishes the contrary].) In response to the request for diversion, 

the prosecutor argued Wolpert would not be able to comply with treatment 

due to pending charges in another county. The prosecutor cited no statute or 

case law, simply asserting “even if [Wolpert] is willing to comply with a

treatment plan, he will be unable to do so because he will be transported to 

Sacramento County on his outstanding warrant to face charges there.” 

Wolpert’s counsel repeated this assertion during an in-chambers conference 

and, as the Attorney General concedes, this is why Wolpert withdrew his 

request for diversion. (Compare with People v. Ledesma, at p. 746 [claim of 

ineffective assistance must be rejected if the record fails to indicate why 

counsel engaged in challenged action or omission].) 

But we can find nothing in the diversion statute or case law — and the 

Attorney General cites none — supporting the notion that a pending case in a 

different county barred Wolpert’s suitability or eligibility for diversion. 

(People v. McCary (1985) 166 Cal.App.3d 1, 8 [counsel has a duty to carefully 

investigate all defenses of law available, promptly advise defendants of their 

rights and take necessary actions to preserve those rights].) Rather, the

statute suggests otherwise. Its purpose is to meet the “unique mental health 

treatment and support needs of individuals with mental disorders” and 

provide counties “discretion and flexibility” to implement diversion. 

(§ 1001.35, subds. (c), (b).) Nor is there conflict in the law governing the 

criteria for ordering diversion. (Compare with People v. Foster (2003) 

111 Cal.App.4th 379, 385 [attorney not responsible for failing to anticipate 

resolutions of law when a subject is doubtful or debatable].) Thus, on this 

record, Wolpert’s counsel had no rational, tactical purpose for advising his 

client to withdraw his application. (People v. Mai, supra, 57 Cal.4th at 

p. 1009.) 
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We reject the Attorney General’s argument that Wolpert is estopped 

from claiming ineffective assistance because the diversion application was 

withdrawn at Wolpert’s request. Generally, a defendant is estopped from 

claiming ineffective assistance if their counsel acts in conformance with the 

defendant’s own request. (People v. Snow (2003) 30 Cal.4th 43, 120.) 

Wolpert’s claim, by contrast, is predicated on his counsel’s advice to withdraw 

the motion. Nothing in the record indicates Wolpert sought to pursue 

this strategy against counsel’s advice. (See, e.g., People v. Majors (1998) 

18 Cal.4th 385, 409 [defendant estopped from claiming ineffective assistance 

where action taken against counsel’s advice].)

Second, counsel’s advice prejudiced Wolpert, who withdrew his 

request even though he appeared to satisfy eligibility and suitability criteria. 

And making the request would not have been futile. He consented to 

diversion and waived his right to a speedy trial. (§ 1001.36, subd. (c)(2).) 

A psychologist opined he experienced paranoid and grandiose delusions, 

indicative of a delusional disorder — a diagnosis included in the most recent 

DSM — while he was evaluated for his competency to stand trial. (§ 1001.36, 

subd. (b)(1).) Wolpert’s disorder was a significant factor in the commission of 

his offense. (Id., subd. (b)(2); Sarmiento, supra, 98 Cal.App.5th at p. 891.) 

For example, a police report indicated he was experiencing mental problems 

at the time of the offense. (§ 1001.36, subd. (b)(2) [authorizing consideration 

of police reports and witness statements when assessing whether a mental

disorder was a significant factor in the charged offense].) 

Clinicians also noted Wolpert’s mental disorder symptoms would 

respond to treatment. (§ 1001.36, subd. (c)(1).) A psychologist stated

antipsychotic mediation was medically appropriate and clinically indicated 

for Wolpert, who exhibited moderate thought process disturbance as 
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evidenced by his illogical, tangential, circumstantial, and irrational 

statements. After taking antipsychotic medications, he demonstrated more 

goal-directed thought processes, leading to a decrease in circumstantial 

speech. He tolerated challenging conversations with less frustration. The 

Attorney General’s assertion that insufficient evidence demonstrates his 

delusional disorder would respond to treatment is unsupported by the record.

Moreover, Wolpert agreed to comply with treatment — he wanted to 

continue his current psychotropic medication plan and return to a mental 

health program in Sacramento County where he had previously received 

treatment (§ 1001.36, subd. (c)(3).) As previously discussed, nothing 

supports the Attorney General’s assertion that compliance with diversion was 

not possible given the Sacramento County charges. And on this record, 

nothing indicates the recommended treatment plan was insufficient to 

address his specialized needs. (Id., subd. (f)(1)(A)(i).) The plan included 

continuing psychotropic medication and exploring any necessary changes to 

that regimen with a treating psychiatrist, mental health services at a 

treatment facility that already noted it would readmit Wolpert upon his 

release, exploring higher levels of treatment, abstaining from marijuana, and 

connecting with appropriate medical services to address several physical 

health issues.

Finally, there is prima facie evidence Wolpert does not pose an 

unreasonable risk of danger to public safety — that is, an unreasonable risk 

he would commit a new violent felony under section 667. (§ 1001.36, 

subd. (c)(4) [incorporating § 1170.18’s definition of “unreasonable risk of 

danger to public safety”].) Those violent felonies are “super strikes,” 

including murder, attempted murder, solicitation to commit murder, assault 

with a machine gun on a police officer, serious or violent felonies punishable 
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by death or life imprisonment, and possession of a weapon of mass 

destruction. (People v. Moine (2021) 62 Cal.App.5th 440, 449.) He has no 

prior convictions, violent offense convictions, or prior prison commitments. 

(§ 1001.36, subd. (c)(4) [court may consider defendant’s violence and criminal 

history]; Moine, at p. 451 [dangerousness is generally present where 

defendants have long criminal histories involving violent felonies].) His 

criminal threat charge did not support an inference he was likely to commit a 

super strike offense in the future. (Moine, at pp. 450–451.) Wolpert also 

noted mental health treatment, including his prescribed medications, was

helpful, and he expressed a willingness to participate in treatment. 

(Whitmill, supra, 86 Cal.App.5th at p. 1152 [defendant’s statements 

regarding willingness to participate in treatment demonstrated, in part, lack 

of substantial evidence defendant would commit a super strike offense].) 

To the extent the Attorney General suggests Wolpert’s section 11418, 

subdivision (a) charge in Sacramento County for attempted possession of a 

weapon of mass destruction establishes his dangerousness, we disagree. 

That offense does not statutorily preclude placement into diversion. 

(§ 1001.36, subd. (d)(8) [defendants whose current charged offenses are 

violations of § 11418, subds. (b) or (c) may not be placed in diversion].) 

Moreover, nothing in the record indicates how the charge was resolved, and 

Wolpert was released on bail for that offense. (People v. Moine, supra,

62 Cal.App.5th at p. 451 [releasing defendant on bail indicated “the court 

necessarily found that [the defendant] was not likely to cause ‘great bodily 

harm to others’ if released” and it is “logically inconsistent to deny mental 

health diversion on the ground that [the defendant] was likely to commit a 

super strike offense”].) Under these circumstances, he has demonstrated a 

reasonable probability of a different outcome had counsel not advised him to 
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withdraw his pretrial diversion application. (Strickland v. Washington, 

supra, 466 U.S. at p. 694 [“A reasonable probability is a probability sufficient 

to undermine confidence in the outcome”].) 

In sum, Wolpert has established both deficient performance and 

resulting prejudice. Accordingly, we conclude a conditional reversal and 

remand is warranted.2 (People v. Burns (2019) 38 Cal.App.5th 776, 789–790

[“Conditional reversal thus restores the case to its procedural posture before 

the jury verdict for purposes of evaluating [a defendant’s] eligibility for 

pretrial mental health diversion”].)

DISPOSITION

The judgment is conditionally reversed. The matter is remanded to the 

trial court with directions to hold a diversion eligibility hearing under section 

1001.36. If the court finds Wolpert eligible under the statute, it may grant 

diversion. If Wolpert satisfactorily performs in diversion, the court shall 

dismiss the charges. (Id., subd. (h).) If the court does not grant diversion, or 

if the court grants diversion but Wolpert does not complete it satisfactorily, 

the court shall reinstate Wolpert’s conviction. 

2 In a separate order filed this same date, we dismiss Wolpert’s 

companion petition for writ of habeas corpus based on the same grounds as 

moot. (In re David Alexander Wolpert, on habeas corpus, A168798.) 
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_________________________

RODRÍGUEZ, J.

WE CONCUR:

_________________________

FUJISAKI, Acting P. J.

_________________________

PETROU, J.

A166450