People v. Valencia CA2/5

Filed 3/3/22 P. v. Valencia CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B310795

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA102743)
v.

PATRICIA VALENCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Yvette Verastegui, Judge. Conditionally
reversed and remanded.
Sharon Fleming, under appointment by Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Mar L. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.

__________________________
 Defendant and appellant Patricia Marie Valencia appeals
the denial of her pretrial motion for mental health diversion from
her criminal prosecution. She ultimately pleaded no contest to
several of the charges against her and received a probationary
sentence. She appeals the judgment of conviction, challenging
only the trial court’s denial of diversion. We conclude the trial
court abused its discretion and conditionally reverse the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges and Plea
On August 18, 2020, defendant was charged by information
with three counts of driving a vehicle without consent (Veh. Code,
§ 10851, subd. (a)), one count of tampering with a vehicle (Veh.
Code, § 10852), three counts of possession of burglar’s tools (Pen.
Code, § 466), two counts of receiving a stolen vehicle (Pen. Code,
§ 496d), two counts of resisting arrest (Pen. Code, § 148, subd.
(a)(1)), one count of misdemeanor flight from a pursuing peace
officer vehicle (Veh. Code, § 2800.1, subd. (a)), and one count of
commercial burglary (Pen. Code, § 459). Broadly speaking, the
charges arose from a number of auto thefts – defendant broke
into and drove the victims’ cars. In one instance, she fled from
police. In another, she broke into an auto shop and stole vehicle
keys from a key board.
She initially entered a plea of not guilty.
2. Defendant’s Motion for Mental Health Diversion
On September 3, 2020, defendant moved for mental health
diversion, pursuant to Penal Code, section 1001.36.1 The motion

1 All undesignated statutory references are to the Penal
Code.

2
was supported by a psychological assessment by Catherine Scarf,
Ph.D. Dr. Scarf concluded defendant met the DSM-5 criteria for
the following diagnoses: Borderline Intellectual Functioning,
Unspecified Schizophrenia Spectrum/Other Psychotic Disorder,
Stimulant Use Disorder, and Posttraumatic stress disorder.
Among other things, Dr. Scarf’s report assessed defendant’s
amenability to treatment. This, in turn, was based on 12
predictors. A score of under 4 is excellent. A score of 11 or 12
would present “a very difficult treatment process.” Defendant’s
score was 8, which reflects “there are many and varied obstacles
to a smooth treatment process.” Dr. Scarf recommended
defendant for “ODR,” a reference to the Office of Diversion and
Reentry.2

2 We advised the parties of our intent to take judicial notice
of certain facts. Neither party objected. We take judicial notice
of the following: The Office of Diversion and Reentry was created
in September 2015 by the Los Angeles County Board of
Supervisors. “Its mission is to develop and implement county-
wide criminal justice diversion for persons with mental and/or
substance use disorders, to provide reentry services based on an
individual’s needs, and to reduce youth involvement with the
justice system.” https://dhs.lacounty.gov/office-of-diversion-and-
reentry/our-services/office-of-diversion-and-reentry/ [as of Mar. 2,
2022], archived at < https://perma.cc/25X6-G7NG>.

Among its programs is an ODR Housing program, offered “to
serve individuals who are homeless, have a serious mental health
disorder,” and are awaiting a felony trial in Los Angeles County
jail. The program includes “pre-release jail in-reach services,
enhanced treatment efforts (additional clinical assessments and
immediate initiation of medications, as indicated), and immediate
interim housing upon release from jail in anticipation of

3
 The motion was supported by a letter from the Alcoholism
Center for Women, which verified defendant’s acceptance into its
60-90 day residential program. Although the residential part of
the program was of limited duration, the letter indicated that
clients would receive “[t]ransitional planning as well as linkage
to community resources when applicable.”
3. The Hearing and Ruling
The court held a diversion hearing on October 5, 2020. At
this point, defense counsel informed the court that defendant had
three cases pending in other courts, all involving similar charges.
Defense counsel represented that defendant was homeless and
using the stolen cars for shelter; she committed burglaries
because she was addicted to methamphetamine. Counsel
suggested that if defendant had been on medication, she would
not have committed any of the crimes. Counsel acknowledged, “I
do want to point out that she does have a record of offenses and
she was previously given a three-year prison sentence to be
served in county jail, and she has come out and is back to the
same type of offenses, which I think highlights the fact that she
needs treatment. If we continue to, you know, send her to jail

permanent supportive housing. Clients in the ODR Housing
program are assigned an Intensive Case Management Services
provider, who works with the client as they transition from
custody to community. The Intensive Case Management Services
providers serve as the core point of contact for the client’s
medical, mental health, and other supportive services.”
https://dhs.lacounty.gov/office-of-diversion-and-reentry/our-
services/office-of-diversion-and-reentry/jail-based-clinical-
diversion-innovative-programs/ [as of Mar. 2, 2022], archived at
.

4
with no treatment, her conditions don’t just disappear. She
needs medication. She needs treatment. Especially the PTSD.
That’s a really difficult one, as the court knows, to treat, and
she’s going to need some professional help. And I don’t know
what the correct saying is, but there’s this – the definition of
insanity is just doing the same thing over and over and expecting
a different result. If we continue to send her into custody and not
provide her the things that she needs, I can see these types of
offenses continue to happen. But on the other side, if she’s given
the treatment and the shelter, you know, she’s housed as opposed
to unhoused and medicated as opposed to drug addicted, she
wouldn’t have any need to be committing these types of
[offenses.]”
There followed a lengthy discussion, in which the court
found defendant eligible, but not suitable, for mental health
diversion, but suitable for ODR.
The trial court frankly admitted it had struggled with the
decision. Representative of the court’s reasoning was the
following:
“I think that you highlighted it perfectly. And so I am
struggling, because she, one, is homeless, and she has engaged in
this conduct repeatedly. So she – I agree with you, this is not a
situation in which she is stealing vehicles for the purpose of
selling parts to make money. She is taking vehicles most likely
for shelter so that she can be in a safe environment. But here,
this is where the rub is, is that in each instance in which she was
arrested, placed on probation where services would be available
for her, she opted not to take advantage of those services, not to
take advantage of anything available to her, and continued to do
the same thing. And I think that you were correct, the definition

5
of insanity is doing the same thing with the expectation that
there would be a different outcome. And here we can look at it in
both lights. Do we basically incarcerate her with the expectation
that she will change her behavior, or do we release her and
expect her – that she will change her behavior and take
advantage of what she had already been offered?
“And so that’s where it’s the rub for the court is, is that
here we have a situation in which she is addicted to
methamphetamine, here she is also having PTSD, which I’m sure
is the reason why she self-medicates with the methamphetamine.
You know, her level in terms of intellect also probably
contributes. So there’s all these contributing facts that the court
is looking at in making a determination whether or not she is a
good candidate for mental health diversion and whether or not
she has the potential to succeed in mental health diversion.
“And this is my concern, and this is why I actually opted for
ODR, is that mental health diversion is so fluid. It really doesn’t
offer any sort of structure that the court could rely on. Now, if we
had a mental health diversion similar to Regional Center, where
they had a case worker and that case worker worked with them,
set them up, then I think that the court would feel more
comfortable in relationship to public safety or the defendant’s
potential for success. And those are the two issues that I’m
having a difficulty with, because I want – I want Ms. Valencia to
succeed. And that’s why, for me, I don’t think mental health
diversion would – even getting her into a particular alcohol
center for women, as we know, many defendants, unfortunately,
when given the opportunity to go into a program, walk away, not
for one, maybe two, maybe three times, and that’s because of
variety of reasons. The addiction is too hard. The program is not

6
structured enough. There is no one to basically monitor her or
him in order to offer those wraparound services. Because when
you’re in a situation in which you have all of these issues,
wraparound services are needed.
“And I will say that the court has granted diversion, but
the court’s granted diversion when the court has felt that the
defendant has wraparound services or support that the court felt
confident that the person – if there was any issues, that the
defendant had the ability to rely on others, family members,
sponsors, someone that would assist. And here we have someone
who is homeless, who is entirely left to their own devices, without
anyone to provide them with the necessary tools to succeed, to
address the mental health issues that have brought her before
the court, to address the homelessness that has brought her
before the court, to address her addiction that has brought her
before the court. And so, given that she is by herself without
really any means – and going to the Alcohol Center for Women is
one step, but because she was placed on probation and she had
the ability to do that before and was given a probation officer and
didn’t utilize it, I’m not convinced that she will take advantage.
And that’s why, for me, mental health diversion really is a good
call if somebody has wraparound services that allows a defendant
to succeed.”
The court suggested that if defense counsel could “find
something similar to the Regional Center, where it is a complete
wraparound service, where she has a case worker that follows
her, that meets with her, that guides her, that holds her
accountable, then perhaps that would be something that the
court would consider. And that’s why, for me, I don’t have it.
And so ODR has that. So, because I’m looking at her

7
homelessness, because I’m looking at her challenges, because I’m
looking at her meth addiction, I believe that those all are things
that the court should take into consideration. The people should
as well. [¶] In terms of her case, I don’t think that mental health
diversion offers her enough support to succeed. And that’s really
the motivation for the court denying the mental health diversion,
because I just don’t see, okay, we’ll just put her in a program and
hope she does better than she has in the past. I think that ODR,
with the accountability, with the doctors and programs that are
in place, I think that that will give her a better chance of really
addressing all of the issues that brought her before the court.
And that’s honestly why I’m uncomfortable granting it, because I
just – I don’t think that there is enough support in just sending
her to a program. And for me, my discretion is that I just don’t
want to send her to a program. I want her to actually do well.
And without anything more, I don’t think that, you know, that
mental health diversion is the right avenue, given her set of
circumstances.”
After further argument, and weighing the competing
factors, the court concluded that, even with two full years of
diversion, defendant’s lifelong problems were not sufficiently
likely to be resolved to mitigate public safety concerns. The court
believed defendant needed lifetime support, which could be
provided by ODR, not mental health diversion. The court
therefore referred defendant to ODR.
4. ODR Rejects Defendant; She Finds Another Program
Nine days later, on October 14th, defendant’s counsel
reported to the court that the ODR referral was rejected, “with a
note saying ODR is reserving all of their spots for defendants who
are exhibiting bipolar disorder symptoms or are schizophrenic.”

8
Defense counsel continued to search for a longer program with
more services than the Alcoholism Center for Women.
On November 4, 2020, defendant was accepted into the
Tarzana Treatment Center, which defense counsel represented
was “more in terms of full service with – we know would
transition her after that first residential program, which my
understanding could be up to six months longer if she needs but
typically around six months, and then they transition her.”
5. The Court Denies Diversion Again
In light of ODR’s rejection and defendant’s acceptance into
the Tarzana Treatment Center, defendant sought to renew her
motion for mental health diversion. The court initially indicated
a reluctance to allow reargument but ultimately reaffirmed its
finding that defendant was eligible, but not suitable, for
diversion. The court specifically concluded that the new
information – including defendant’s admission into the Tarzana
Treatment Center – did not change its earlier ruling. The court
stated, “Given the facts of this case, it’s appropriate to get her
help in some form and some fashion. I do not feel that she is
suitable for mental health diversion, although she’s eligible. I
don’t feel that she’s suitable given that her underlying issue
really is substance abuse and the doctor that you had who
evaluated and indicated she’s difficult to treat.”
The court was still open to getting defendant into a
program, but declined to do so through mental health diversion.
The specifics of the court’s position are unclear, as the reporter’s
transcript omits some key words. The court volunteered, “And I
have to say I do think Ms. Valencia’s cases can be resolved as
well. I think that these crimes are because she is homeless,
seeking shelter. That is why I suggested ODR. That is why – I

9
suggested that she enter a deal with the People and get her into a
program. I will be happy to (indecipherable) release her to the
two programs that you found.” When her counsel stated she
would like to do that “today,” the court stated, “I am perfectly
happy to do that and perfectly happy to get her into a program
(indecipherable) release her and have her monitored, have her
address her substance abuse and get her on track to have her life
turned around, absolutely, but it’s not going to be through mental
health diversion.”
6. Defendant’s Plea and Probationary Sentence
On January 20, 2021, defendant and the prosecution
entered into a plea agreement.3 Pursuant to the disposition,
defendant pled no contest to two counts of driving a vehicle
without consent and one count of misdemeanor fleeing a police
officer’s vehicle. The court suspended imposition of sentence and
placed defendant on probation for two years. She was to serve
440 days in jail, with credit for the full 440, and to serve 365 days
“in a residential/outpatient treatment program at Tarzana
Treatment Center.”
7. Notice of Appeal
Defendant filed a timely notice of appeal, seeking to
challenge only the denial of mental health diversion. The trial
court granted a certificate of probable cause. (See People v.
Padfield (1982) 136 Cal.App.3d 218, 228 [the wrongful denial of

3 The prosecution had initially declined to make a plea offer
that included probation. At defendant’s plea hearing, the Deputy
District Attorney represented “this agreement is being reached
due to special directive issued by District Attorney George
Gascon, and the people have no choice but to offer probation on
this case that would not have otherwise been the offer.”

10
pretrial diversion may be raised on appeal by a certificate of
probable cause after a plea of guilty or no contest].)
DISCUSSION
1. Law of Mental Health Diversion
The mental health diversion statute provides that “pretrial
diversion” means the postponement of prosecution “subject to” a
number of requirements, one of which is that “[t]he court is
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.
(c)(1)(A).) “Before approving a proposed treatment program, the
court shall consider the request of the defense, the request of the
prosecution, the needs of the defendant, and the interests of the
community.” (§ 1001.36, subd. (c)(1)(B).) “The provider of the
mental health treatment program in which the defendant has
been placed shall provide regular reports to the court, the
defense, and the prosecutor on the defendant’s progress in
treatment.” (§ 1001.36, subd. (c)(2).)
“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.”
(§ 1001.36, subd. (b)(3).)
Eligibility encompasses six factors. “A trial court may
grant pretrial diversion under section 1001.36 if the court finds:
(1) the defendant suffers from a qualifying mental disorder;
(2) the mental disorder was a ‘significant factor’ in the
commission of the charged offense; (3) a qualified mental health
expert opines the defendant’s symptoms will respond to
treatment; (4) the defendant consents to diversion and waives his

11
or her speedy trial rights; (5) the defendant agrees to comply with
the treatment as a condition of diversion; and (6) ‘the defendant
will not pose an unreasonable risk of danger to public safety, as
defined in Section 1170.18, if treated in the community.’
(§ 1001.36, subd. (b)(1)(A)-(F).)”4 (People v. Moine (2021)
62 Cal.App.5th 440, 447-448 (Moine).)
If the defendant successfully completes diversion, including
having in place a plan for long-term mental health care, the
criminal charges shall be dismissed. (§ 1001.36, subd. (e).)
However, if after diversion is granted, a qualified mental health
expert concludes the defendant “is performing unsatisfactorily in
the assigned program,” the court shall, after notice to defendant,
hold a hearing to determine whether criminal proceedings should
be reinstated or treatment modified. (§ 1001.36, subd. (d)(4)(A).)
The Legislature intended the mental health diversion
program to apply as broadly as possible. (People v. Frahs (2020)
9 Cal.5th 618, 632.)
2. Standard of Review
“The standard of review on appeal from a trial court’s
denial of mental health diversion is not settled.” (Moine, supra,

4 Section 1170.18, subdivision (c) defines “unreasonable risk
of danger to public safety” to mean “an unreasonable risk that
the [defendant] will commit a new violent felony within the
meaning of clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667.” That clause, in turn, itemizes
eight categories of offenses: sexually violent offenses, oral
copulation with a child under 14, lewd or lascivious act with a
child under 14, homicide, solicitation to commit murder, assault
with a machine gun on a peace officer, possession of a weapon of
mass destruction, and any serious or violent felony punishable by
life imprisonment or death.

12
62 Cal.App.5th at p. 448.) The Moine court reviewed the
language of the statute, and concluded an abuse of discretion
standard applies. (Ibid. See also People v. Williams (2021)
63 Cal.App.5th 990, 1000.) We agree that is the correct standard.
3. The Trial Court Abused Its Discretion
This case presented the trial court with a unique factual
dilemma, one with which the trial court said it struggled before
reaching its decision. The defendant was, concededly, eligible for
diversion. Moreover, the defendant and the offense would have
been suitable for diversion, according to the trial court, if there
had been an available program with sufficient wraparound and
support services to help guarantee her success.5
The court sought defendant’s acceptance into ODR and
suggested that if there were “a mental health diversion similar to
Regional Center, where they had a case worker and that case
worker worked with them, set them up,” it would have been
comfortable granting diversion. In other words, the court’s
concern with defendant’s suitability for diversion was not tied to
defendant herself or her offenses, but the level of supervision
provided by available programs. However, once the prosecutor
was amenable to a probationary sentence, the court conditioned
probation on defendant’s participation in a residential/outpatient
treatment program at Tarzana Treatment Center – the exact

5 The court also commented that it had previously granted
diversion where a defendant “had the ability to rely on others,
family members, sponsors, someone that would assist,” whereas,
here, defendant was “homeless, . . . left to [her] own devices,
without anyone to provide [her] with the necessary tools to
succeed . . . .” The parties do not address whether the lack of a
family support network is an appropriate factor to consider in
denying diversion.

13
same program defendant expressed willingness to take part in
through mental health diversion.
We need not decide whether a trial court is required to
make a separate finding of suitability for diversion beyond its
eligibility finding. Even if suitability is a separate inquiry, we
conclude the court abused its discretion in finding defendant not
suitable.
We understand that implicit in the trial court’s denial of
diversion was its belief that conviction, suspended sentence, and
participation in the program as a condition of probation were
necessary to ensure defendant’s compliance with the program,
but diversion alone with its promise of dismissal of the charges
(and concomitant risk of reinstatement if performance is
unsatisfactory) was insufficient.
But there is nothing in the statute that allows the court to
deny diversion on this basis. The court did not tie its
determination that probation was necessary to any of the
eligibility factors; instead it repeatedly stated defendant was
eligible for diversion. The court found defendant not suitable for
diversion, yet defendant’s offense was suitable for diversion and
the Tarzana Treatment Center program was suitable for
defendant. The only basis for its unsuitability finding was the
court’s conclusion that the carrot of dismissal was inadequate to
guarantee compliance while the stick of probation would do it.
The most recent case to address eligibility for mental
health diversion is People v. Pacheco (2022) ___ Cal.App.5th ___
[2022 WL 453956]. There, the defendant, while under the
influence of methamphetamine, set a forest fire. The trial court
denied diversion, but suspended imposition of sentence and
placed him on formal probation, under which he was released to a

14
mental health facility. (Id. at p. ___ [2022 WL 453956, *1].)
Recognizing that if the defendant relapsed into drug use, he could
set additional fires, the court concluded that he posed “an
unreasonable risk to public safety if treated in the community
without criminal conviction and supervised probation.” (Id. at
p. ___ [2022 WL 453956, *3].) On appeal, the ruling was
affirmed. The trial court did not abuse its discretion in
concluding defendant was ineligible for diversion, on the basis
that he presented an unreasonable risk of danger (in this case,
committing arson murder) if treated in the community. (Id. at
p. ___ [2022 WL 453956, *5].) In the course of its analysis, the
appellate court stated, “mental health diversion may provide
some motivation for remaining drug-free and compliant with
treatment for mental illness. In theory, felony probation with
state prison ‘hanging over his head,’ will provide even more
motivation.” (Id. at p. ___ [2022 WL 453956, *4].)
Pacheco is distinguishable because that court tied its
analysis to an eligibility factor – concluding that the extra
motivation of state prison was necessary when the risk of
defendant lapsing in his treatment could result in a fire causing
loss of life. Thus, the defendant presented an unreasonable risk
of danger unless the additional controls of probation were in
place. That situation is not presented by defendant here; the
court did not find that she posed “an unreasonable risk of danger
to public safety, as defined in Section 1170.18, if treated in the
community.”
To be sure, the Pacheco court stated, “mental health
diversion may provide some motivation for remaining drug-free
and compliant with treatment for mental illness. In theory,
felony probation with state prison ‘hanging over his head,’ will

15
provide even more motivation.” While we agree with this
“theory,” it would necessarily apply in every case in which
diversion is under consideration. Probation always has the stick
potential built into it. But the trial court did not expressly state
that it was denying diversion because defendant presented a
danger to the community without the structure of probation. The
court expressed concern about the effectiveness of treatment and
wraparound services, but subsequently conditioned probation on
the same Tarzana Treatment Center treatment program that
was available to defendant through diversion.
The Legislature intended mental health diversion to be
applied as broadly as possible. (People v. Frahs, supra, 9 Cal.5th
at p. 632.) We find nothing in the statute that suggests the
Legislature intended to give courts discretion to deny diversion
simply because diversion itself is less motivating than probation.
Without any facts connecting the necessity of the additional
motivation of probation to an eligibility factor, the conclusion that
diversion is insufficiently motivating is simply a challenge to the
underlying premise of diversion itself. The Legislature has
concluded that diversion has sufficient safeguards when the
defendant does not pose an unreasonable risk of danger to public
safety and is otherwise eligible and suitable for diversion; courts
cannot override that determination without specific facts relating
to defendant.
4. Proceedings on Remand
The court erred in denying defendant’s motion for
diversion. However, on January 20, 2021, defendant received a
probationary sentence, including the requirement she complete
365 days in Tarzana Treatment Center. More than one year has
passed; the parties have not advised us through a request for

16
augmentation or judicial notice of any information as to whether
defendant successfully completed her treatment program,
remains on probation, is incarcerated or her situation generally.
On remand, the court shall permit defendant to vacate her plea
and seek diversion.
DISPOSITION
The judgment is conditionally reversed and the matter
remanded for the court to allow defendant 30 days in which to
move to withdraw her plea and seek pretrial diversion. If she
does so, the court shall consider any intervening factors in its
determination whether to grant diversion, and the views
expressed in our opinion. If defendant does not move to vacate
her plea within the 30 days or if the court again determines
defendant should not be granted diversion, the court shall
reinstate the judgment.

RUBIN, P. J.
WE CONCUR:

BAKER, J.

MOOR, J.

17