People v. Cabalar (Cal. Ct. App., Dec. 16, 2025, No. G065108) 2025 WL 3640515, at *1–2
Summary: Penal Code section 1001.36 creates a mental health diversion program has put in place a pretrial means of getting individuals mental health treatment and resources that meet their needs in order to reduce recidivism and advance public safety. Cabalar appeals from a judgment entered after the trial court denied his motion for mental health diversion. The court found he met all statutory eligibility and suitability criteria but exercised “residual discretion” to deny the motion based on public safety concerns and a perceived inability of courts to monitor individuals during the period of diversion.
Cabalar argues the trial court had no authority to deny diversion once it concluded he met the statutorily specified eligibility and suitability criteria. He also contends the court abused its discretion by relying on matters inconsistent with the purposes of the mental health diversion statute and an incorrect statement about court oversight during diversion. Although a grant of diversion is discretionary even if a defendant meets all eligibility and suitability criteria specified in the statute: a court’s discretion must be exercised in a manner consistent with the principles and purposes of the legislation, which includes having mental health diversion apply as broadly as possible. In this case denial of diversion was based on findings unsupported by substantial evidence, matters inconsistent with legislative policy and purpose, and a misunderstanding of a characteristic of the diversion program. Here, the denial of diversion was an abuse of discretion. The judgment was reversed and remanded with directions that, absent any evidence of changed circumstances since the original denial that affect Cabalar’s eligibility or suitability for diversion, the court grant his diversion motion.
Facts
While Cabalar was on formal probation in three other counties, a complaint filed in the Superior Court charged him with seven counts based on a May 2023 arrest: possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), possession of ammunition by a prohibited person (id., § 30305, subd. (a)(1)), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), obliterating firearm identification (Pen. Code, § 23900), two counts of misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (id., § 11364, subd. (a)).
Mental Health Diversion Motion
After being arraigned on the complaint, entering a not guilty plea, and being released on bail, Cabalar filed a motion for mental health diversion pursuant to section 1001.36. His moving papers argued he suffered from various mental disorders that substantially contributed to commission of the crimes charged and he met all the qualification requirements for pretrial diversion under the statute.
People’s Opposition
The People opposed Cabalar’s motion arguing: “(1) [his] mental disorders were not a significant factor in the commission of the charged offenses; (2) [he was] unlikely to comply with the requirements of treatment; and (3) [he] pose[d] an unreasonable risk of danger to public safely.” The People relied on the circumstances of Cabalar’s arrest for the current offenses which were narrated in a police report, as well as Cabalar’s prior criminal history detailed in a rap sheet and various police reports. The People did not offer any opinion evidence from a mental health professional.
Trial Court Decision
Acknowledging that Cabalar met the statutory eligibility and suitability criteria, and his need for mental health treatment, the court said it was “not convinced [it] should divert [him].” Explaining that mental health diversion is the “least restrictive means of monitoring somebody,” targeting those who show a pattern of going in and out of the criminal justice system because of a mental health issue, the court noted there were no “ways of notifying the [c]ourts when relapses happen.” It expressed it was “not satisfied that [Cabalar’s] not going to harm somebody.”
The Judgment
In January 2025, Cabalar pled guilty to all counts except the obliterating firearm identification count which had already been dismissed by the People. The court sentenced him to two years of formal probation with a condition of probation being that he serve 364 days in jail.
Cabalar timely appealed.
The Mental Health Diversion Statutes
Originally enacted in 2018, sections 1001.35 and 1001.36 provide for a pretrial diversion program for certain criminal defendants with mental disorders. In context, “ ‘ “[p]retrial diversion” means the postponement of prosecution, either temporarily or permanently, … to allow the defendant to undergo mental health treatment,’ subject to certain conditions.” (People v. Braden (2023) 14 Cal.5th 791, 801.) Among the express purposes of the program is to “increase[ ] diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.” (§ 1001.35, subd. (a).)
Under section 1001.36, with the exception of defendants charged with certain crimes, a trial court “may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial [mental health] diversion to a defendant … if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).” (Id., subd. (a).)
The two eligibility requirements are: (1) “[t]he defendant has been diagnosed with a mental disorder as identified in the most recent edition of the [DSM]”; and (2) “[t]he defendant’s mental disorder was a significant factor in the commission of the charged offense.” (§ 1001.36, subd. (b)(1)–(2).) The court must “find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” (Id., subd. (b)(2); see also Stats. 2022, ch. 735, § 1.)
“[A] defendant is suitable for pretrial diversion” if the following four criteria are met: (1) a qualified mental health expert opines the defendant’s symptoms of the relevant mental disorder “would respond to mental health treatment”; (2) “[t]he defendant consents to diversion and waives [their] right to a speedy trial”; (3) “[t]he defendant agrees to comply with treatment as a condition of diversion”; and (4) “[t]he defendant will not pose an unreasonable risk of danger to public safety, as defined in [s]ection 1170.18, if treated in the community.” (§ 1001.36, subd. (c)(1)–(4).)
If the defendant meets all eligibility and suitability criteria, the trial court “may, in its discretion,” grant pretrial diversion. (§ 1001.36, subd. (a).) “The maximum period of diversion [for a felony] is two years. 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. ‘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.’ ” (People v. Frahs (2020) 9 Cal.5th 618, 627, (Frahs).)
A trial court’s mental health diversion determination is reviewed for an abuse of discretion. (People v. Bunas (2022) 79 Cal.App.5th 840, 848 (Bunas);“ ‘A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.’ ” (Bunas, at pp. 848–849.)
Trial Court’s Residual Discretion To Deny Diversion, Generally
Appellate courts have recognized section 1001.36 provides the trial court with discretion to deny diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. (See., Such discretion is commonly referred to as a court’s “residual discretion.”
The 2023 amendments did not change permissive language in the very provision of the statute which empowers the trial court to grant pretrial mental health diversion. Both before and after the amendments, the statute says a court “may” grant diversion to a defendant who meets the specified statutory criteria. The 2023 amendments underscored that diversion is not mandatory by adding an express reference to the court’s discretion that did not previously exist: “On an accusatory pleading alleging the commission of a [qualifying offense], the court may, in its discretion, … grant pretrial diversion ….” (§ 1001.36, subd. (a), italics added.)
A trial court’s discretion is not unlimited or unconstrained
Residual discretion “must be exercised ‘ “consistent with the principles and purpose of the governing law.” ’ ” “The stated purpose of mental health diversion ‘ “is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services.” ’ ” (Gomez, at p. 691, 336 Cal.Rptr.3d 130.)
The trial court found Cabalar would not pose an unreasonable risk of danger to public safety if treated in the community. (See § 1001.36, subd. (c)(4).) The court concluded there was no unreasonable risk he would commit one of the “super strike” violent felonies set forth in section 667, subdivision (e)(2)(C)(iv).
Despite that finding, and findings that Cabalar met all other statutory eligibility and suitability criteria, the trial court said it was hesitant to trust he would not harm someone if granted diversion and expressed its belief he was “a danger to the public.”
The court abused its discretion in denying mental health diversion based on findings unsupported by substantial evidence, grounds inconsistent with the principles and purposes of the legislation, and a misstatement of law. “Denial of mental health diversion using [a court’s] residual discretion should be limited to those situations where the purposes of the statute would not be achieved.” (Vaughn, supra, 105 Cal.App.5th at p. 138, fn. omitted.)
Disposition
The judgment is reversed. On remand the trial court shall vacate its order denying Cabalar’s motion for pretrial mental health diversion and, absent any evidence of changed circumstances since the original denial that affect his eligibility or suitability for such diversion under the statutory criteria, issue a new order granting the motion.
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