People v. Whitmill

Filed 12/23/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B318582

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA103608)
v.

THOMAS WHITMILL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County. Amy N. Carter, Judge. Reversed and remanded
with instructions.

Karyn H. Bucur, by appointment of the Court of Appeal, for
Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.

_________________________
 INTRODUCTION
Sixty-one-year-old defendant and appellant Thomas
Whitmill appeals the denial of his pretrial motion for mental
health diversion of his criminal prosecution. He argues he is an
honorably discharged veteran who suffers from a severe mental
disorder and meets the eligibility requirements for pretrial
mental health diversion under Penal Code1 section 1001.36.
We conclude the trial court erred when it denied appellant’s
motion. We reverse and remand the matter to the trial court
with instructions to grant the motion for diversion.
FACTUAL AND PROCEDURAL BACKGROUND
I. Underlying Facts2
During the evening of March 26, 2021, appellant and
Shannon Carter, his girlfriend of two years with whom he shares
an apartment in West Covina, drove to the City of Gardena to
visit a friend of hers. Appellant “wasn’t feeling too good” so, after
dropping Shannon off at her friend’s, he went to the grocery store
to get “some medication.” He dropped Shannon off in an alleyway
with parking stalls and carports near an apartment building.
He later returned, “with his medication,” to pick Shannon
up. He asked her if she wanted to stay with her friend, but she
said no and got into his van. Appellant began “to get loud
because at that present moment he wasn’t feeling too good.”
Shannon exited the van and walked back towards her friend Dez,

1 Undesignated statutory references are to the Penal Code.
2 Information about the incident is taken from the transcript
of the preliminary hearing.

2
who was in his car. She got in Dez’s car and went to the store
with him to buy cigarettes.
Shannon and Dez returned to the alley where appellant
had previously dropped her off. Dez exited his car and walked
towards appellant; he asked appellant if he was “okay” because
“it looked like he was—something was wrong.” Appellant replied,
“Don’t walk up on me” and fired a shot in the air. Shannon did
not see who fired the shot, as she was in the process of exiting
Dez’s car and had her back towards them. Shannon looked
towards appellant’s direction and observed he was “enraged.” At
the time of the gunshot, Shannon was about 15 feet away from
appellant, and Dez was about three and a-half to four feet away
from appellant. Appellant then walked towards Shannon and
pointed his left index finger towards her; she did not see a gun in
appellant’s hands. She asked him if he was okay because she had
“never seen him . . . acting” like this, “moving at a fast speed and
. . . just upset.” Appellant then ran away.
Almost immediately, Shannon flagged down a Los Angeles
County Sheriff’s car that was coming in her direction. She
pointed at appellant and told Deputy Sheriff Kevin Walker that
he “had a gun and that [she] heard a shot go off.” Deputy Walker
looked towards appellant’s direction and “saw him cut
northbound into a carport where he appeared to toss something
under a car.” Deputy Walker ordered appellant to show his
hands and exit the carport. Appellant complied with “no
incident,” and was detained by Deputy Walker.
Deputy Sheriff Gustavo Rosales arrived at the scene and
canvassed the carport area for a firearm and expended shell
casings. He recovered a 9-millimeter handgun on the bed of a

3
black Silverado truck; the firearm was loaded. He also found one
extended 9-millimeter shell casing in the dirt in the alley.
According to Deputy Walker, Shannon told him she saw
appellant “holding a firearm in his hand” after having heard the
shot, and that appellant said to her, “Bitch, I will kill you.”
Shannon testified she did not recall telling Deputy Walker she
saw appellant with a gun in his hand. She also testified that
appellant did not threaten her. According to Shannon, a man
named Loco walked up to her after the incident and said, “Bitch,
is he going to kill you?” She did not recall from which direction
Loco arrived; “everything just happened so fast” and she was “in
shock.”
Shannon later discovered there were people standing about
35 to 40 feet away from the scene of the incident, “inside of a
gate” in “the next apartment over from the alley.” They were not
visible from where she was standing during the incident, but she
later saw them when “one of the officers told them to close the
gate.”
Shannon continued to remain in contact with appellant
after the incident and is still in a dating relationship with him.
II. The Charges and Plea
On June 10, 2021, appellant was charged by amended
information with one count of possession of a firearm by a felon
(§ 29800, subd. (a)(1)), one count of discharge of firearm with
gross negligence (§ 246.3, subd. (a)), and one count of criminal
threats (§ 422, subd. (a)).
On July 15, 2021, appellant entered a plea of not guilty.
He also informed the court he “seeks mental health diversion.”

4
III. Motion for Mental Health Diversion
On October 29, 2021, appellant filed a notice of motion for
pretrial diversion pursuant to section 1001.36. In support of his
motion, appellant submitted a sworn declaration from his
counsel, a confidential psychological evaluation report by Robin
Rhodes Campbell, Ph.D., MPH, MS (Dr. Campbell), and a letter
from appellant’s Veteran’s Administration (VA) liaison Jonathan
Clark, LCSW.
The psychological evaluation report states appellant was
evaluated on October 14, 2021 by Dr. Campbell as to his
eligibility for diversion under section 1001.36. Dr. Campbell
reviewed Los Angeles Sheriff’s Department records, the CLETS
report, probation officer’s report, case records, records from the
VA, and the letter from appellant’s VA liaison.
VA records indicate appellant was treated for military
sexual trauma (MST) and was diagnosed with post-traumatic
stress disorder (PTSD). He was treated for intrusion symptoms
and negative alterations in mood and cognition and received
psychiatric and psychological treatment. Appellant attributes his
PTSD to the sexual violence he experienced. He has had
“recurrent, involuntary, and intrusive distressing memories of
the traumatic event.” He experiences flashbacks, “distressing
dreams,” and “dissociative reactions related to the event.”
Appellant’s “beliefs about the world were changed by the trauma,
as he found it difficult to trust people afterward.” He “sometimes
. . . mistake[s] people’s intentions toward [him]” and catches
himself “in a daze” and tries not to “let [him]self react to those
thoughts.”
He reported an ongoing pattern of using substances “as a
way of dealing with the MST” and his psychiatric symptoms. He

5
had substance abuse treatment at the VA in the past, and “found
it to be helpful.” He was previously in treatment for over two
years, but relapsed in November 2020 upon learning a loved one
was diagnosed with cancer; a few months later, he was arrested
following the March 2021 incident. He reported he was “very
willing” to participate in substance abuse treatment as well as
mental health treatment.
Dr. Campbell opined appellant has “severe mental illness”
further complicated by substance abuse. Appellant’s mental
disorder “was considered to be a significant factor in the charged
offense and would be amenable to treatment.” His symptoms
include “hypervigilance, irritability, depression, affective
numbing, and an increased perception of threat.” Prior to the
incident, appellant was “using substances to numb his painful
negative emotions” and at the time of the incident, experienced “a
heightened sense of threat and reacted accordingly.” Dr.
Campbell opined that due to “interference from [appellant’s]
severe mental disorder, [he] was not able to perceive events
accurately or respond appropriately to them.”
Dr. Campbell opined appellant “would not pose an
unreasonable risk of danger to public safety if treated in the
community and he abstains from substance abuse.” Dr.
Campbell further opined that “any risk to the community could
be mitigated by treatment.” Appellant had benefitted from
treatment in the past. Appellant has now been taking
medication and reports “a reduction in anxiety and depression.”
Dr. Campbell concluded appellant fit the eligibility criteria under
section 1001.36. Dr. Campbell also provided a detailed treatment
plan for appellant, including antidepressant medication,
psychological therapy, substance abuse treatment, and intensive

6
inpatient mental health services. Dr. Campbell recommended a
“dual-diagnosis treatment program that addressed both his
psychiatric disorder and his substance abuse disorder” and
believed he “would benefit from focused and appropriate
intervention.”
The VA liaison noted appellant received an honorable
discharge and was diagnosed and rated as 90 percent service-
connected for PTSD. He suffered from PTSD, hypervigilance,
high-startle response, deep depression, insomnia, sleep
disturbance, self-isolation, and anxiety. He was rated as being
unemployable. The VA requested “the court consider allowing
this Veteran an opportunity to take advantage of the Military
Misdemeanor [and] Felony Diversion Statute[s] . . . and Mental
Health Diversion statute.” The VA “would be happy to work with
[appellant] and the court to facilitate an appropriate treatment
plan to meet the court’s and the Veteran’s requirements.”
IV. The People’s Opposition
On December 27, 2021, the People filed opposition to the
motion for mental health diversion. They argued the defense
failed to provide any evidence that appellant will not pose an
unreasonable risk of danger to public safety. They argued
appellant “demonstrated that he is violent and likely to commit a
super strike, namely attempted murder or murder.” Appellant’s
history “suggests that he will likely continue to use narcotics.”
They stated appellant is a “threat to public safety” and “cannot be
safely treated in the community.”
The prosecution listed appellant’s criminal record, which
included possession and sale of drugs and theft. The prosecution
conceded as well that appellant’s “criminal record does not
include crimes of violence.”

7
V. Hearing and Ruling
On February 10, 2022, the court denied appellant’s motion.
The court compared the facts of appellant’s case with People v.
Moine (2021) 62 Cal.App.5th 440 (Moine). The court found that
although there were threats made by the defendant in Moine,
“the circumstances in that case were vastly different from what
I’m looking at in the current case.” The court also found it
“significant” that the defendant in Moine was found by the
experts to pose “a low risk for future assault” whereas the expert
in this case found appellant would not pose an unreasonable risk
of danger to public safety if treated so long as he abstained from
substance use. “This expert opinion is very different. It is very
qualified. It is not an assessment that there’s low risk of future
assault as there was in Moine. Instead . . . [t]he assessment
[here] is not a low risk and it requires that the defendant abstain
from substance use. [¶] . . . [¶] But the level of control that would
be required of the defendant, I think it would be unreasonable for
me to expect that he would be able to exercise that level of control
over his behavior. [¶] Any grant of mental health diversion
requires a commitment and behavior modification from a
defendant, especially where substance abuse, rather substance
abstention, abstaining from substances, is part of the expert’s
opinion. [¶] And what I have here is a defendant who had three
years in the county jail suspended. And that’s designed to create
a strong disincentive to commit any new crime. That does not
give me great confidence.”
“[T]he critical factor that I’m relying on, is the gun use
reflected in the preliminary hearing transcript in this case. [¶]
What I have here is a criminal threat accompanied by firing a
shot into the air. And according to the information in the . . .

8
preliminary hearing transcript, including the impeaching
statements made by the named victim to the member of law
enforcement on the night of the incident, the defendant made a
threat to kill after he had fired a shot in the air. [¶] The distances
described at the time the defendant fired the shot was 15 feet
from the female victim. And . . . that was three and a half feet to
four feet, at the most, between the defendant and the male who
was present at the time the shot was fired. That is so very
different from the situation in Moine. [¶] When I am looking at
what is reasonable and what is unreasonable to subject innocent
members of the community to, in terms of risk, when I release
someone in the community to be treated, looking at making a
death threat and firing a gun in the air . . . leads me to conclude
that it would be irresponsible for me to, to find that that would be
an acceptable risk of dangerousness.”
The court found that “based on the defendant’s willingness
to make a threat to kill accompanied by firing a gun into the air,
that that conduct demonstrates that he is likely to commit a
super strike offense.” The court concluded that appellant “poses
an unreasonable risk of danger to public safety as defined in . . .
section 1170.18” and denied his motion.
On February 17, 2022, appellant and the prosecution
entered into a plea agreement. He withdrew his guilty plea and
pleaded no contest to discharge of a firearm with gross negligence
(§ 246.3, subd. (a)); the remaining two counts were dismissed
upon the People’s motion. Appellant admitted to violating
probation in case Nos. TA152209 and YA100085 due to his
conviction in the instant case. Appellant was sentenced to a total
term of three years in prison for the two probation violations and

9
the instant case (violation of § 246.3, subd. (a)). He received
656 days of credit.
Appellant timely appealed. The trial court granted a
certificate of probable cause to appeal the denial of the motion for
mental health diversion. (See People v. Padfield (1982)
136 Cal.App.3d 218, 228 [the wrongful denial of pretrial diversion
may be raised on appeal by a certificate of probable cause after a
plea of guilty or no contest].)
DISCUSSION
I. Standard of Review
A trial court’s ruling on a motion for mental health
diversion is reviewed for an abuse of discretion, and factual
findings are reviewed for substantial evidence. (Moine, supra,
62 Cal.App.5th at p. 449; People v. Oneal (2021) 64 Cal.App.5th
582, 588.) A trial court has “broad discretion to determine
whether a given defendant is a good candidate for mental health
diversion.” (People v. Curry (2021) 62 Cal.App.5th 314, 324.)
“A court abuses its discretion when it makes an arbitrary or
capricious decision by applying the wrong legal standard
[citation], or bases its decision on express or implied factual
findings that are not supported by substantial evidence.” (Moine,
at p. 449; People v. Bunas (2022) 79 Cal.App.5th 840, 848–849
(Bunas).)
II. Applicable Law
Section 1001.36 authorizes pretrial mental health diversion
for defendants with qualifying mental health disorders. (People
v. Frahs (2020) 9 Cal.5th 618, 626–627 (Frahs).) As used in the
statute, “pretrial diversion” means “ ‘postponement of
prosecution, either temporarily or permanently, at any point in

10
the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo
mental health treatment.’ ” (Id. at p. 626, citing § 1001.36, subd.
(c).) “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), italics added.)
The six threshold eligibility requirements are set forth in
section 1001.36, subdivision (b)(1)(A)–(F). First, the court must
find defendant suffers from a mental disorder as identified in the
most recent edition of the Diagnostic and Statistical Manual of
Mental Disorders. (Id., subd. (b)(1)(A).) “Evidence of the
defendant’s mental disorder shall be provided by the defense and
shall include a recent diagnosis by a qualified mental health
expert. In opining that a defendant suffers from a qualifying
disorder, the qualified mental health expert may rely on an
examination of the defendant, the defendant’s medical records,
arrest reports, or any other relevant evidence.” (Ibid.)
Second, the court must find “the defendant’s mental
disorder was a significant factor in the commission of the charged
offense.” (§ 1001.36, subd. (b)(1)(B).) “A court may conclude that
a defendant’s mental disorder was a significant factor in the
commission of the charged offense if, after reviewing any relevant
and credible evidence, including, but not limited to, police
reports, preliminary hearing transcripts, witness statements,
statements by the defendant’s mental health treatment provider,
medical records, records or reports by qualified medical experts,
or evidence that the defendant displayed symptoms consistent
with the relevant mental disorder at or near the time of the

11
offense, the court concludes that the defendant’s mental disorder
substantially contributed to the defendant’s involvement in the
commission of the offense.” (Ibid.)
Third, “a qualified mental health expert” must opine that
“the defendant’s symptoms of the mental disorder motivating the
criminal behavior would respond to mental health treatment.”
(§ 1001.36, subd. (b)(1)(C).)
Fourth, subject to certain exceptions, the defendant must
consent to diversion and waive his or her right to a speedy trial.
(§ 1001.36, subd. (b)(1)(D).)
Fifth, the defendant must agree to comply with treatment
as a condition of diversion. (§ 1001.36, subd. (b)(1)(E).)
Finally, the court must find defendant will not pose an
“unreasonable risk of danger to public safety . . . if treated in the
community.” (§ 1001.36, subd. (b)(1)(F).) Section 1170.18,
subdivision (c) defines “unreasonable risk of danger to public
safety” to mean “an unreasonable risk that the petitioner will
commit a new violent felony” within the meaning of section 667,
subdivision (e)(2)(C)(IV). 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—colloquially referred to as “super
strikes.” (§ 667, subd. (e)(2)(C)(iv); Bunas, supra, 79 Cal.App.5th
at p. 851, fn. 11.)
Even if a defendant meets the six threshold eligibility
requirements, “a trial court may still exercise its discretion to
deny mental health diversion if it finds that the defendant or the

12
offense are not suitable for diversion.” (People v. Qualkinbush
(2022) 79 Cal.App.5th 879, 888, italics added (Qualkinbush).) In
determining a defendant’s suitability for mental health diversion,
a trial court may not rely on general sentencing objectives set
forth in rule 4.410 of the California Rules of Court3 and must
consider the primary purposes of the mental health diversion
statute as set forth in section 1001.35. (Id. at pp. 890–892;
Bunas, supra, 79 Cal.App.5th at pp. 865–866.)
The stated purpose of this legislation 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. (See Qualkinbush, supra, 79 Cal.App.5th
at p. 886 [discussing § 1001.35].) The Legislature intended the
mental health diversion program to apply as broadly as possible.
(Frahs, supra, 9 Cal.5th at p. 632.) The court “must treat the
matter as if the charges against the defendant have not yet been
adjudicated; the court is not sentencing the defendant.”
(Qualkinbush, at p. 892, fn. 11.)

3 The general objectives of sentencing include: protecting
society, punishing the defendant, encouraging the defendant to
lead a law-abiding life in the future and deterring him from
future offenses, deterring others from criminal conduct by
demonstrating its consequences, preventing the defendant from
committing new crimes by isolating him for the period of
incarceration, securing restitution for the victims of crime,
achieving uniformity in sentencing, and increasing public safety
by reducing recidivism through community-based corrections
programs and evidence-based practices. (Cal. Rules of Court,
rule 4.410(a).)

13
 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. (Id., subd. (d)(4)(A).)
III. Analysis
On appeal, only one of the six prongs in section 1001.36,
subdivision (b)(1) is at issue, namely subdivision (b)(1)(F)—that
the defendant “will not pose an unreasonable risk of danger to
public safety . . . if treated in the community.” (§ 1001.36,
subd. (b)(1)(F).)
It is undisputed appellant satisfies the first five of the six
qualifying mental health diversion requirements and the People
do not contend otherwise. First, appellant was diagnosed and
rated as 90 percent service-connected for PTSD, a qualifying
mental disorder (per § 1001.36, subd. (b)(1)(A)), resulting from
the MST he suffered. Second, Dr. Campbell opined appellant’s
mental disorder “played a significant role in the commission of
the charged offense” and appellant was “not able to perceive
events accurately or respond appropriately to them” due to
“interference from his severe mental disorder.” Third, Dr.
Campbell further opined a dual-diagnosis treatment program
that addressed both his psychiatric and substance abuse disorder
would be most beneficial and appellant’s symptoms would
respond to treatment. Fourth and fifth, appellant expressed he
was “very willing” and consented to the diversion and agreed to

14
comply with the treatment as a condition of diversion (per
§ 1001.36, subds. (b)(1)(D), (E)).
Appellant contends the trial court abused its discretion in
denying his request for pretrial mental health diversion because
there is no evidence, let alone substantial evidence, to support
the court’s finding that he poses an unreasonable risk of danger
to public safety if treated for his mental illness in the community.
He argues the record does not support the trial court’s conclusion
given appellant’s lack of a prior history of violent felony
convictions and his mental state at the time of the crimes. He
claims the trial court further abused its discretion because the
Legislature intended the mental health diversion program to
apply as broadly as possible.
We agree there was no substantial evidence that appellant
poses an unreasonable risk to public safety or, put another way,
that he is too dangerous to be treated in the community because
he would commit a new violent super strike. (§ 1001.36, subd.
(b)(1)(F) and § 667, subd. (e)(2)(C)(iv).) Those super strikes are
murder, attempted murder, solicitation to commit murder,
assault with a machine gun on a police officer, possession of a
weapon of mass destruction, any serious or violent felony
punishable by death or life imprisonment, or any sexually violent
offenses or sexual offense committed against minors under the
age of 14. (People v. Jefferson (2016) 1 Cal.App.5th 235, 242;
§ 667, subd. (e)(2)(C)(iv).)
Here, the trial court did not find that appellant is “likely to
commit a super-strike offense.” (People v. Hoffman (2015)
241 Cal.App.4th 1304, 1210; Moine, supra, 62 Cal.App.5th at
p. 450 [“a trial court necessarily must find the defendant is ‘likely
to commit a super-strike offense’ ” to deny diversion on this

15
ground; in other words, “the risk of danger is narrowly confined
to the likelihood the defendant will commit a limited subset of
violent felonies”].) Nor is there any evidence in the record to
support such a finding. It is undisputed appellant’s prior record,
consisting of possession and sales of drugs and theft, does not
include violent or sexually violent convictions, let alone a super
strike. (Hoffman at p. 1310 [finding that the record did not
support a finding of dangerousness under § 1170.18 where the
defendant had no prior criminal history and her recent charges
for 18 counts of felony forgery and one count of grand theft of
property were not super-strike offenses].) Moreover, it is
significant that the facts of this incident include appellant
running away from further confrontation, throwing away his
firearm, and peacefully complying with law enforcement’s request
that he come forward and (presumably) be arrested. This
unusual scenario is a far cry from indicating that appellant is
likely to commit a super strike offense in the future.
The trial court below compared the facts of appellant’s case
with Moine and found it significant that the defendant in Moine
was found by the experts to pose “a low risk for future assault”
whereas the expert “assessment [here] is not a low risk and it
requires that the defendant abstain from substance use.” It then
concluded, with no reference to supporting evidence, that “it
would be unreasonable for [the court] to expect that [appellant]
would be able to exercise that level of control over his behavior.”
First, it is unclear how the court determined that the
expert opinion here did not find a low risk for future
dangerousness when Dr. Campbell expressly concluded that
appellant fit the eligibility criteria under section 1001.36 and
further determined he “would not pose an unreasonable risk of

16
danger to the public safety if treated in the community and
abstains from substance abuse.”
Second, we find no substantial evidence to support the
finding that it would be “unreasonable” for the court “to expect
that [appellant] would be able to exercise that level of control
over his behavior,” i.e., abstain from substance abuse such that
he won’t commit a super strike. The record before us includes
substantial evidence that actually leads us to conclude otherwise.
Appellant attributed his relapse in November 2020 to receiving
news about a family member’s cancer diagnosis. He found the
substance abuse treatment he received at the VA in the past was
“helpful” and that he was “very willing” to participate in
substance abuse treatment as well as mental health treatment.
In fact, Dr. Campbell’s report noted that appellant’s severe
mental disorder “would be amenable to treatment” and that he
“benefitted from treatment in the past.” This indicates a high
likelihood that appellant, if provided the chance to participate in
a dual-diagnosis treatment program addressing both psychiatric
and substance abuse issues, would benefit from mental health
diversion and would learn to “be able to exercise that level of
control over his behavior”—contrary to the trial court’s finding
otherwise. (See § 1001.36, subd. (h) [the court may consider past
performance/participation and records related to a mental
disorder].)
Appellant had reported to Dr. Campbell an ongoing pattern
of using substances “as a way of dealing with the MST” and his
severe mental disorder/PTSD. In appellant’s case, the proposed
mental health diversion plan included personalized dual
treatment addressing both appellant’s mental disorder and
substance abuse disorder. The VA liaison officer had confirmed

17
the VA would “work with [appellant] and the court to facilitate an
appropriate treatment plan to meet the court’s and the Veteran’s
requirements.” Taking into consideration that the Legislature
intended mental health diversion to be applied as broadly as
possible (Frahs, supra, 9 Cal.5th at p. 632), ordering appellant to
participate in such a dual mental health diversion plan would
provide an opportunity to address and treat appellant’s MST,
PTSD, as well as his substance abuse disorder. This goes hand in
hand with the stated purpose of the mental health diversion
statute as set forth in section 1001.35—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. (See Qualkinbush, supra, 79 Cal.App.5th
at p. 886 [discussing § 1001.35].) That Dr. Campbell reported
appellant has benefitted from treatment in the past and opined
that any risk to the community by appellant could be mitigated
by treatment suggests that appellant is the type of person for
whom the Legislature designed the option of diversion.
After reciting the facts of the incident, the People make the
generic claim that appellant demonstrated he is violent, poses an
unreasonable risk of danger to the public, and likely to commit a
super strike, namely attempted murder or murder. Respondent
argues the trial court “was rightly concerned about the risk that
appellant would commit homicide or attempted homicide if
allowed to remain in the community.” The problem with the
People’s argument is that they offer no specific substantial
evidence to support their position. They refer to appellant’s
substance abuse but, as already stated, that abuse does not

18
constitute substantial evidence that appellant would commit a
murder, attempted murder, or any other super strike. They also
point out appellant was in possession of a firearm and
“recklessly” fired a single shot into the air. Yet they agreed that
appellant could plead no contest to negligent discharge of a
firearm, presumably because that accurately describes what he
did. And we agree that the plea to negligent discharge
appropriately summarizes that happened, considering the unique
circumstances surrounding appellant and the incident.
First, appellant mentioned before the incident that he
“wasn’t feeling too good” and went to get “some medication”;
Shannon’s testimony confirmed he was not feeling well that day;
she had “never seen him . . . acting” like this, “moving at a fast
speed and . . . just upset.” Dez reported “it looked like he was—
something was wrong.”
Second, right after Dez came up to appellant to check on
him, appellant stated “don’t walk up on me” and fired a single
shot up in the air. This appears to be evidence of the
hypervigilance appellant suffered. Yet despite this symptom of
his mental illness, he had the presence of mind to warn Dez not
to approach him in that manner again.
Third, and perhaps most importantly, appellant shot a
single shot up in the air, as if using it more like a bullhorn to
warn Dez against approaching any closer. He did not aim the
handgun at Dez or Shannon, but rather aimed at the sky. Surely
he could have aimed the gun at Dez, who was three and a-half to
four feet away, or Shannon, who was 15 feet away, if he intended
to inflict injury on a person.
Nor did he turn around and engage, aim, or fire the gun at
Deputy Walker who appeared on site within moments. Instead,

19
he threw the gun away and immediately turned himself in to
Deputy Walker with “no incident.” These undisputed facts
indicate a likelihood that appellant would not commit a super
strike. The court’s speculation that appellant posed an
unreasonable risk of danger to public safety is belied by the
totality of appellant’s behavior and criminal history.
The People refer to the fact that there was a crowd of
people about 35 to 40 feet away from the scene. But, as
evidenced by Shannon’s testimony, that crowd was not visible
from where they were standing during the incident as the crowd
was “inside of a gate” in “the next apartment over from the alley.”
The crowd became apparent only when “one of the officers told
them to close the gate.”
The People also compare the facts in appellant’s case to
Moine and People v. Pacheco (2022) 75 Cal.App.5th 207 (Pacheco).
As to Moine, the People fail to mention that the defendant in that
case was also charged with two other felony counts for assault
and battery and one misdemeanor count for battery, all
stemming from a second, unrelated incident the year before.
(Moine, supra, 62 Cal.App.5th at pp. 444–445.) The defendant
had stated he had a gun and he had threatened to kill everyone.
(Id. at p. 445 & fn. 2.) While it is true the defendant in Moine did
not possess or threaten the use of a gun, the evidence did show he
had a documented record of prior violence. In our case, appellant
has no prior record of violence and his actions on the night in
question were consistent with the symptoms caused by his PTSD.
His compliant non-violent behavior after negligently firing one
shot into the air mitigates any inference that appellant is likely
to commit a super strike offense in the future. (See id. at p. 451.)

20
 In Pacheco, defendant suffered from schizophrenia and
methamphetamine addiction and faced arson charges as he had
set a forest fire near a homeless encampment and a ranch while
under the influence of methamphetamine. (Pacheco, supra,
75 Cal.App.5th at pp. 209–210.) About 15 units responded from
several local fire departments, in addition to “two large
Blackhead helicopters and a specialized airplane.” (Ibid.)
Psychologist Dr. Wood opined that, “ ‘as long as [the defendant]
takes his psychiatric medication on a consistent basis, and stays
abstinent from using methamphetamine, he would not likely pose
an unreasonable risk of danger to public safety if treated in the
community. However, if he does not take his antipsychotic
medication as prescribed and/or returns to using
methamphetamine, then he would become unstable and psychotic
and be likely to reoffend in some bizarre manner.’ ” (Id. at
p. 211.)
The defendant in Pacheco requested pretrial mental health
diversion, which the trial court denied because it deemed
defendant a danger to the community per section 1001.36,
subdivision (b)(1)(F). (Pacheco, supra, 75 Cal.App.5th at p. 212
[the trial court took “ ‘judicial notice of how dangerous brush fires
are and have been to this community in particular, and given
these current climate conditions and the likelihood or possibility
that such conduct could create a mass-casualty event is not
small. And had this been a different type of offense I would
probably be inclined to grant the motion’ ”].) The trial court
concluded Pacheco posed “an unreasonable risk to public safety if
treated in the community without criminal conviction and
supervised probation.” (Ibid.) On appeal, the ruling was
affirmed and the trial court was found not to have abused its

21
discretion in concluding defendant was ineligible for diversion on
the basis that he presented an unreasonable risk of danger (in
this case, arson murder) if treated in the community. (Id. at
pp. 213–214.)
We find respondent’s reliance on this case misplaced, as
Pacheco is distinguishable from appellant’s case in multiple ways.
The defendant in Pacheco deliberately set a forest fire near a
homeless encampment and ranch, which could have created a
mass casualty event as it required 15 fire-fighting units,
helicopters, and a specialized airplane. This is unlike appellant
who negligently fired a single shot in the air away from those
nearby and then threw the gun away and turned himself into
Deputy Walker with “no incident.”
The expert in Pacheco opined that if the defendant “ ‘does
not take his antipsychotic medication as prescribed and/or
returns to using methamphetamine, then he would become
unstable and psychotic and be likely to reoffend in some bizarre
manner.’ ” (Pacheco, supra, 75 Cal.App.5th at p. 211.) Here Dr.
Campbell did not go so far and proffered no such expert opinion.
Instead she opined that “any risk to the community could be
mitigated by treatment” and recommended a dual-diagnosis
treatment plan.
Finally, in Pacheco, our colleagues in Division Six stated,
“[m]ental 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.” (Pacheco,
supra, 75 Cal.App.5th at p. 214.) While we do not quarrel with
this theory, it would necessarily apply in every case in which

22
diversion is under consideration and, if applied in every case,
moot the statute.
Here, the trial court stated: “[W]hat I have here is a
defendant who had three years in the county jail suspended. And
that’s designed to create a strong disincentive to commit any new
crime. That does not give me great confidence.” As already
noted, the Legislature intended mental health diversion to be
applied as broadly as possible. (Frahs, supra, 9 Cal.5th at
p. 632.) We find nothing in the diversion statute suggesting the
Legislature intended to give courts discretion to deny diversion
simply because diversion is or may be less motivating than
probation or prison. The trial court appeared to be grafting on a
seventh element that defendants show they do not need to be
additionally motivated. The trial court’s 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 just because a grant of
probation in the past has not “motivated” defendants to overcome
symptoms of mental illness which contribute to violations of the
law.
Finally, in determining a defendant’s suitability for mental
health diversion, a trial court may not rely on general sentencing
objectives set forth in rule 4.410 of the California Rules of Court
and must consider the primary purposes of the mental health
diversion statute as set forth in section 1001.35. (People v.
Qualkinbush, supra, 79 Cal.App.5th at pp. 890–892; Bunas,
supra, 79 Cal.App.5th at pp. 865–866.) Here, however the trial

23
court’s discussion of objectives to deter defendant from
committing future offenses demonstrates it relied on general
sentencing objectives set forth in rule 4.410 of the California
Rules of Court instead of the primary purposes of the mental
health diversion statute as set forth in section 1001.35.
(Qualkinbush, at pp. 890–892; Bunas, supra, 79 Cal.App.5th at
pp. 865–866.) The record supports appellant’s clam that the trial
court failed to consider the primary purposes of mental health
diversion as set forth in section 1001.35
Because there was no substantial evidence to support the
trial court’s finding that appellant posed an unreasonable risk of
committing a super strike if treated in the community, and
because the trial court imposed incorrect standards in denying
diversion, we conclude the court erred in denying appellant’s
motion for pretrial mental health diversion. We reverse the trial
court’s denial of appellant’s motion, with directions to grant the
motion and refer the defendant to a pretrial mental health
diversion program, to “avoid the unnecessary delay occasioned by
yet [another]hearing.” (People v. Williams (2021) 63 Cal.App.5th
990, 1005.)

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 DISPOSITION
The judgment is reversed with directions to grant
appellant’s motion for pretrial mental health diversion.

CERTIFIED FOR PUBLICATION

STRATTON, P. J.

I concur:

WILEY, J.

25
HARUTUNIAN, J., Concurring.
I concur with the result, because I believe it is the
result the legislature intends courts to reach under these
circumstances. The statute clearly limits the discretion of
courts to find in any particular case that mental health
diversion creates a public safety risk. The legislature does
not want courts to deny mental health diversion when there
is reason to believe the defendant will commit a violent
felony, unless that felony constitutes a “super strike.” Our
decision is compelled by the policy decision made by our
elected representatives. We are duty-bound to enforce the
law as written, whether or not we agree with the public
safety risk the law accepts as permissible.

*
HARUTUNIAN, J.

*
Judge of the San Diego Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.