Trail court properly denied Mental Health Diversion bases on failure at previous diversion programs

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHARLES RUSSO, Defendant and Appellant. (Cal. Ct. App., May 22, 2026, No. C103388) 2026 WL 1459441, at *1

Summary: Russo appealed the trial court’s denial of his request for mental health diversion. (See Pen. Code,2 § 1001.36.) The Court of Appeal affirmed in a published decision.

Russo was charged with dissuading a witness by force or threat, cruelty to an animal, and possession of drug paraphernalia. He had a prior strike for first degree burglary in 2013.

Request for Mental Health Diversion

Russo filed a request for mental health diversion pursuant to section 1001.36, attaching his mental health diagnosis and treatment plan. Russo was recommended for outpatient treatment with substance use disorder services to address his bipolar disorder, post traumatic stress disorder, methamphetamine use disorder, and cannabis use disorder. Defendant also provided an acceptance letter from an Adult and Teen Challenge residential program “that provides help to adults struggling with any life-controlling issues such as drugs and alcohol.” The program “teaches people how to discipline their lives spiritually, emotionally, and physically and become productive citizens in [the] community.”

The prosecution opposed mental health diversion because defendant was aware of his mental health disorders and “failed to maintain ongoing care to curb his criminality.” In support of its opposition, the prosecution attached a 2021 pre-sentencing report reflecting defendant completed an Adult Teen Challenge program in 2020 but relapsed shortly after. Subsequently, defendant violated his probation—due to possession of a firearm and methamphetamine—and failed to comply with a probation order to apply to a housing program.

The trial court denied Russo’s request for mental health diversion because he was “admitted [into] prior mental health programs but he never gave a hundred percent.  That he engaged in Adult and Teen Challenge one time before, relapsed shortly after his completion.[A]lthough he has successfully engaged in the Adult Teen Challenge … his sobriety … didn’t hold up for very long … I don’t think that he’s a very good candidate for mental health diversion.” The trial court also noted “concerns of public safety” based on Russo’s  prior strike.

The trial court considered defendant’s failure to reform his behavior despite opportunities to receive drug and mental health treatment.

The trial court sentenced defendant to eight years in prison.

Denial of request for mental health diversion was not abuse of discretion

“Section 1001.36 authorizes pretrial mental health diversion for defendants with qualifying mental health disorders.” (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147.) The trial court “may, in its discretion … grant pretrial diversion” if it finds the defendant eligible and “suitable” for diversion, based on the criteria set forth in section 1001.36, subdivisions (b) and (c) respectively. (§ 1001.36, subd. (a).) If the defendant is both eligible and suitable, the trial court must also be “satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (f)(1)(A)(i).) “This is not an additional eligibility or suitability requirement the defendant must meet. Rather … an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892.)

The court in Sarmiento acknowledged a trial court analyzing its discretion under section 1001.36, subdivision (f)(1)(A)(i) “might reject diversion if it concluded that the proposed treatment services did not target or could not effectively address the defendant’s particular diagnosis.” (Sarmiento v. Superior Court, supra, 98 Cal.App.5th at p. 895.) The court in Sarmiento explained: “[T]he alleged failure of prior drug treatment programs [said] nothing about any inadequacy of the proposed plan to address [the defendant’s] mental health needs. Indeed, [the doctor’s] evaluation specifically explain[ed] why the current proposal [was] significantly different from [the defendant’s] prior substance abuse-only treatment efforts.” (Id. at p. 895.)

Unlike in Sarmiento, Russo failed to prove that the proposed treatment plan was any different than the plan that originally failed to address his specialized health treatment needs.  Russo did not explain how returning to an Adult and Teen Challenge program would be different from his previous experience completing the same program. The trial court finding defendant’s return to an Adult and Teen Challenge program would not meet defendant’s specialized mental health treatment needs because it failed to do so in the past—“[t]he past portends the future”—was not arbitrary or capricious.

The trial court did not abuse its discretion by denying defendant’s request for mental health diversion.

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