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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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. A166 450

( 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 reference s 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 count y 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 s uspended his account

. Upon arriving at a parking lot, he2

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 op en , 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 D istrict A ttorney 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). B ased on concerns defense counsel expressed regarding competency to stand trial , th e trial court issued an order of commitment in March 2021

. A correctional facility ultimately determined Wolpert was not competent

— his statement s did not
relate to reality , he had poor insight and judgment, tenuous impulse control,
and was overtly psy chotic

— a nd 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 me ntal health diversion. (§ 1001.36.) A psychiatrist diagnosed him with a delusional disorder , emphasiz ing antipsychotic medication was medically appropriate and clinically indicated

. A social worker report noted Wolpert was experiencing paranoia and delu sions 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 in3

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 Sacr amento

— 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 requir ed his appearance. ( Allegations related to that offense included
him talking about government conspiracies that the Federal Bureau of
In vestigation 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 h is4

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 a t which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment

. ” (§ 1001.36, subd. ( f

) (1) .) P ostpone ment may be temporary or permanent

. ( Ibid .) A defendant charged with a felony

— as is the case here

— may b e 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 fact or in the commission of the charged offense

. (§ 1001.36, sub ds

. (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 rec ent 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 fact or 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) de fendant 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.)5

recent amendments to the statute, t here is a “ presumption that the defendant ’ s diagnosed mental disorder was a significant factor in the commission of the charged crime. ” (S armiento v. Superior C ourt (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 agree s to comply with treatment, and whether th e 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).) T he 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 .)
E ven i f 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 p p

. 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 frame work.
I.
T he Attorney General contend s 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.6

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. De L ong (2002) 101 Cal.A pp.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
disad vantageous collateral consequences can be ameliorated by a successful appeal.” ( Id . at p. 487.) In those circumstances, appeals are not necessarily

moot . D efendants are entitled to appeal the judgment to clear their names
and “ ‘ rid [themselves] of “ the stigma of criminality. ” ’ ” ( Id . at pp. 487

– 48 9 , italics omitted .) That principle applies here. Wolpert cannot obtain relief from imprisonment because the trial court awarded him custody credits exceed ing
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. De L ong , 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 rel iance on Frahs that Wolpert is procedurally barred from obtaining pretrial diversion
because his case ha s 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 went7

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 make s 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, o ther courts have reversed judgments with
directions to reconsider a d efendant’s motion for pretrial mental health diversion after ent ry of a guilty or no contest plea. ( See, e.g., People v. Whitmill , supra , 86 Cal.App.5th at p p

. 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 im possible

. 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, w hen 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 [presum ing counsel’s perform ance falls within range of professional competence unless8

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 c ounty. T he 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 .”
W olpert’s counsel repeated this assertion during an in

- chambers conference and, a s the Attor n ey General concede s , this is why Wolpert withdrew his request for diversion

. (Compare with People v. Ledesma , at p. 74 6 [ 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 cite s none

— support ing the n otion that a pending case in a different county bar red 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 provid e counties “discretion and flexibility ” to implement diversion. ( § 1001.35, subd s . ( 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 res ponsible for failing to anticipate resolutions of law when a subject is doubtful or debatable].) Thus, o n 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.)9

W e 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. N othing in the record indicat es 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 h e appear ed to satisf y eligibility and suitability criteria. And m aking 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 di agnosis 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 experienc ing mental problems at the time of the off

ens e. (§ 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 cli nically indicated for Wolpert , who exhibited moderate though t process disturbance as10

evidenced by his illogical, tangential, circumstantial, and irrational

statements

. After taking antipsychotic medications, he demonstrated more goal

- directed thought proc esses, leading to a decrease in circumstantial speech. He tolerated challenging conversations with less frustration. The Attorney General’s assertion that in sufficient evidence demonstrat es his
delusional disorder would respond to treatment is unsupported by the record

. Moreover, Wolpert agree d 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 ha d previously r eceived

treatment (§ 1001.36, subd. (c)(3).) As previously discussed, nothing supports the Attorney General’s assertion that compliance with diversion wa s not possible given the Sacramento County charges. And on this record, nothing indicates the recomm ended treatment plan wa s 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 p ose an unreasonable risk of danger to public safety

— that is, an unreasonable risk
he w ould commit a new v iolent 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 mu rder, assault with a machine gun on a police officer, serious or violent felonies punishable11

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, vio lent 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 , w as 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 p ossession 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
violation s of § 11418, subds

. (b) or (c) may not be placed in diversion].)
Moreo ver, nothing in the record indicates how the charge was resolved , a nd 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 to12

withdraw his pretrial diversion application. ( Strickland v. Washington , supra , 466 U.S. at p. 694 [ “A reasonable probability is a probability sufficient
to undermi ne 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 [“ Condit ional 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 reman ded to the trial court with directions to hold a diversion eligibility hearing under section
1001.36. If the court finds Wolpert eligible under th e 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 con viction.

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, A 168798 .)13 _________________________ RODRÍGUEZ, J.

WE CONCUR:

_________________________ FUJISAKI, Acting P. J.

_________________________ PETROU, J.

A166450