12022.53, subd. (b); count 2); (3) assault with personal use of a deadly or dangerous
weapon (a taser) (§§ 245, subd. (a)(1), 12022, subd. (b)(1); count 3); and (4)
misdemeanor battery (§ 242). Counts 1 and 2 alleged that Flareau personally used a
firearm in the commission of the offenses. (§§ 12022.5, subd. (a), 12022.53, subd. (b).)
Before the preliminary hearing, Flareau moved for pretrial diversion for mentally
disordered offenders under section 1001.36. The trial court found Flareau made a prima
facie showing that he qualified for diversion. At Flareau’s request, the court then set the
4
matter for a formal hearing on whether to grant him mental health diversion. The People
opposed Flareau’s request for diversion.
As part of Flareau’s request for a formal hearing, he submitted a report by clinical
psychologist, Dr. Melanie Murua, stating that she diagnosed Flareau with “unspecified
mood affective disorder.” Dr. Murua noted that Flareau’s treating psychiatrist, Dr. Allen
Drucker, had diagnosed him with major depressive disorder, dysthymia, panic disorder
with agoraphobia, and obsessive compulsive disorder. At the time of the incident with
Mikaylah, Flareau was under Dr. Drucker’s treatment and was taking medication for
depression and anxiety. Dr. Murua concluded that Flareau’s mental disorder contributed
to his behavior underlying his charges and that his symptoms motivating his criminal
behavior would respond to mental health treatment. Specifically, Dr. Murua opined that
Flareau would benefit from individual psychotherapy, which he had never received.
Flareau also submitted a letter from Dr. Drucker. Like Dr. Murua, Dr. Drucker
believed that Flareau’s mental health disorders contributed to his behavior underlying his
charges. And, like Dr. Murua, Dr. Drucker believed that Flareau would benefit from
psychotherapy, which he had never received. Dr. Drucker confirmed that he had only
treated Flareau with psychiatric medication.
Both Dr. Murua and Dr. Drucker noted that Flareau is gay, but not openly so with
his parents due to his concern that they would “disown him” if they found out. Flareau
was thus “living in fear” that his “very conservative” parents would learn that he is gay.
5
According to Dr. Drucker, Flareau reported that Mikaylah “antagonize[d] him by
making homophobic statements” and threatening to “out” him to their parents. Flareau
claimed that Mikaylah did so the day before their altercation occurred when they argued
at the home. This, in Dr. Drucker’s view, put Flareau in “an acute state of anxiety and
panic,” because he believed Mikaylah telling his parents that he is gay would result in
them disowning him and kicking him out, leaving him homeless. According to Dr.
Drucker, “[t]his state of desperation overwhelmed Flareau’s capacity for rational thinking
. . . [and] contributed to his threats against his sister.” In short, Dr. Drucker believed that
Flareau’s mental disorders “were significant causal and contributing factors” to his
altercation with Mikaylah.
After hearing argument from the parties, the trial court began its ruling by
recapping an off-the-record, in-chambers discussion the court previously had with the
parties. The court explained that the discussion was about Flareau’s concerns about his
sexuality being revealed to his parents because of this case and that the court was
considering it only because it was relevant to the case.
In the court’s view, there was a “nexus between [Flareau’s] conduct and [his]
various mental health diagnoses,” but his “response in this situation was not solely
because of [those] diagnoses.” Instead, the court found that Flareau responded the way
he did “also out of fear and concern that his sister would tell his secret.” (Italics added.)
After discussing the problems between Flareau and Mikaylah outlined in Dr. Drucker’s
letter, the court ultimately found that there was “clear and convincing evidence to
6
indicate that this incident had more to do with his sister antagonizing him with the threats
to out him to his parents,” although “his response to those threats was most certainly
linked to the impulsiveness that may be related to his diagnosis as discussed by Dr.
Murua.”
The trial court then discussed the intent behind section 1001.36 and mental health
diversion: “[T]he idea is there are individuals that commit offenses because of their
mental health issues . . . [a]nd the idea is if we can treat those underlying mental health
issues, we are not going to see those people in and out of the criminal justice system.”
The court noted that Flareau had been “receiving mental health treatment for years prior
to this incident happening” and that it was only medication, but found that “there is
nowhere that says it has to be treatment and medication.”
After distinguishing People v. Sarmiento (2024) 98 Cal.App.5th 882 (Sarmiento),
as inapplicable, the court returned to the fact that Flareau had been receiving psychiatric
treatment “for years prior to this incident.” The court noted Flareau had no other criminal
history, which led the court to query, “if his conduct is really because of his mental health
issues, wouldn’t we have seen him getting into other trouble?” “The difference,”
according to the court, was “this threat from [Flareau’s] sister to out him” and his “very
real fear and very real concern” that she would do so.
For this reason, the court found that Flareau did not “truly fall[] under the spirit of
what is intended by [section] 1001.36.” The court reasoned that “the spirit of [it]” is that
mental health treatment can keep “people from coming in and out of” the criminal justice
7
system, and Flareau’s “case and circumstances” do not “fall under what was intended by
[section] 1001.36” because he was in mental health treatment and compliant with that
treatment at the time of his alleged offenses. Because the court found that Flareau did not
“fall[] within the spirit of [section] 1001.36,” the court denied his request for diversion.
Flareau timely filed a petition for a writ of mandate in this court. After inviting
response to the petition from the superior court and the People, the Riverside County
District Attorney filed an informal response. We then issued an order to show cause and
invited the parties to file additional briefs, but the District Attorney elected to stand on his
informal response and not file anything further. Flareau filed a traverse to the informal
response.
8
III.
DISCUSSION
A. Appellate Jurisdiction
We first reject the District Attorney’s argument that we lack jurisdiction over
Flareau’s petition, which the District Attorney claims belongs in the Appellate Division.
To support his position, the District Attorney relies entirely on People v. Nickerson (2005)
128 Cal.App.4th 33, which held that a “‘defendant is not “charged with a felony” within
the meaning of section 691 until an information or indictment is filed or a complaint is
certified to the superior court pursuant to section 849a.’” Because none of these options
has occurred here—Flareau was only charged by a felony complaint—the District
Attorney maintains this is a “‘misdemeanor case’” that belongs in the Appellate Division.
We disagree. People v. Nickerson involved an appeal of a misdemeanor
conviction and judgment, not a writ petition. (People v. Nickerson, supra, 128
Cal.App.4th at p. 36.) It is thus inapplicable here.
Courts of Appeal have “original jurisdiction over petitions for writ of mandate.”
(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177, citing Cal. Const.,
art. VI, § 10.) We therefore have discretion to review any petition for a writ of mandate
properly filed in our court, including Flareau’s. (See Powers v. City of Richmond (1995)
10 Cal.4th 85, 11; see also Cal. Rules of Court rule 8.486(a)(1) [“If the petition could
have been filed first in a lower court, it must explain why the reviewing court should
9
issue the writ as an original matter.”].) We are unaware of any authority that supports the
District Attorney’s position that we lack jurisdiction here.
B. Overview of Mental Health Diversion Process and Standard of Review
Diversion allows the trial court to suspend criminal proceedings and potentially
dismiss the charges if the defendant successfully completes mental health treatment.
(Sarmiento, supra, 98 Cal.App.5th at p. 890.) To grant diversion, the trial court must find
that the defendant is both eligible for diversion and suitable for a mental health program.
(Id. at p. 891.) “Defendants are eligible if they have been diagnosed with a recognized
mental disorder that was a significant factor in the commission of the criminal offense
with which they are charged.” (Id. at p. 892.) The trial court “shall 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.”
(§ 1001.36, subd. (b)(2).)
A defendant is suitable for diversion if “(1) in the opinion of a qualified mental
health expert, the defendant’s mental disorder would respond to treatment; (2) the
defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply
with treatment requirements; and (4) the defendant will not pose an ‘unreasonable risk of
danger to public safety’” as defined. (Sarmiento, supra, 98 Cal.App.5th at p. 892, italics
added.)
10
But, even if the trial court finds that a defendant is eligible and suitable for
diversion, the court retains discretion to deny diversion. (Sarmiento, supra, 98
Cal.App.5th at p. 892.) This has been deemed “residual discretion.” (Ibid.)
In general, we review a trial court’s ruling on a request for mental health diversion
for an abuse of discretion and review its factual findings for substantial evidence.
(Gomez v. Superior Court, supra, 113 Cal.App.5th at p. 686; Lacour, supra, 110
Cal.App.5th at p. 401.)
More specifically, when reviewing the trial court’s eligibility finding, we
determine whether there is “substantial evidence from which a reasonable factfinder
could have found it highly probable that [the defendant’s] mental disorder ‘was not a
motivating factor, causal factor, or contributing factor to the defendant’s involvement in
the alleged offense.’” (Lacour, supra, 110 Cal.App.5th at p. 402.) Similarly, when
reviewing the trial court’s suitability finding, we must determine whether substantial
evidence supports the trial court’s findings concerning the four suitability factors. (Id. at
pp. 400-401; § 1001.36, subd. (c)(1)-(3).)
But when reviewing the trial court’s exercise of its residual discretion, we apply
the abuse-of-discretion standard. (Lacour, supra, 110 Cal.App.5th at p. 401.) That
standard directs us to determine whether the court made a decision that is “‘so irrational
or arbitrary that no reasonable person could agree with it,’” or made “an arbitrary or
capricious decision by applying the wrong legal standard,’” or based its decision on
factual findings not supported by substantial evidence. (Ibid.)
11
C. Analysis
We first accept the District Attorney’s concession that the trial court found Flareau 3 eligible for diversion. And although it appears the trial court made no suitability finding,
we agree with the parties that the trial court denied Flareau’s motion for diversion under 4 its residual discretion. We conclude that was an abuse of discretion.
When exercising its residual discretion, the trial court must do so consistent with
the principles and purposes of the mental health diversion program. (Sarmiento, supra,
98 Cal.App.5th at p. 892.) The purposes include promoting “[i]ncreased diversion of
individuals with mental disorders to mitigate the individuals’ entry and reentry into the
criminal justice system while protecting public safety,” and to “provid[e] diversion that
3 Flareau’s principal argument in his petition is that the trial court erroneously found he was not eligible for diversion. In fact, Flareau did not argue in his petition that the trial court denied his petition under its residual discretion. The District Attorney, for his part, claimed the trial court found Flareau was eligible for diversion, but nonetheless denied diversion under its residual discretion. In response, Flareau argued for the first time that the trial court improperly exercised its residual discretion. The parties’ apparent confusion over the trial court’s findings is understandable because the basis for the trial court’s order is not entirely clear. For one thing, the court did not expressly state whether it found Flareau eligible or suitable (or not) for diversion, nor did it state it was denying his motion under its residual discretion. It is also unclear whether the court found Flareau eligible for diversion since the court found there was “a nexus between the conduct and the various mental health diagnoses,” which suggests the court found him eligible. On the other hand, the court also found there was “clear and convincing evidence to indicate that this incident had more to do with [Flareau]’s sister antagonizing him with the threats to out him to his parents,” which suggests the court found he was not eligible for diversion. 4 We note that the District Attorney did not challenge this conclusion at oral argument, and instead focused his argument exclusively on whether we have jurisdiction here.
12
meets the unique mental health treatment and support needs of individuals with mental
disorders.” (§ 1001.35, subd. (a) & (c).) There is thus “a strong legislative preference for
treatment of mental health disorders because of the benefits of such treatment to both the
offending individual and the community.” (Sarmiento, supra, 98 Cal.App.5th at pp. 892-
893.) In fact, “the Legislature intended the mental health diversion program to apply as
broadly as possible” when the statutory requirements are met. (People v. Whitmill (2022)
86 Cal.App.5th 1138, 1149 (Whitmill).) For that reason, “[a] trial court’s denial of mental
health diversion using its residual discretion should be limited to those situations where
the purposes of the statute would not be achieved.” (Vaughn v. Superior Court (2024)
105 Cal.App.5th 124, 138.) When the court denies diversion under its residual discretion,
“its statement of reasons should reflect consideration of the underlying purposes of the
statute and explain why diversion would not meet those goals.” (Sarmiento, supra, at p.
893.)
The trial court appropriately recognized the intent and purposes of the mental
health diversion program and noted that the Legislature intended for the program “to
include as many people . . . as possible.” But the trial court ultimately concluded Flareau
did not fall within the spirit and intent of the program because he had been in mental
health treatment for years and compliant with it when he committed the alleged offenses.
The court reasoned that this, coupled with the fact that he had no other criminal history,
showed that his mental health issues did not cause his altercation with his sister, so the
intent behind section 1001.36—“if we can treat these underlying mental health issues, we
13
can keep these people from coming in and out of . . . the criminal justice system”—would
not be furthered by granting Flareau diversion.
We discern several problems with this analysis.
First, Drs. Drucker and Murua opined that Flareau would benefit from
psychotherapy, which he had never received before, in addition to medication. The trial
court discounted their opinions on the ground that “there is nowhere that says it has to be
[psychotherapy] treatment and medication.” But the primary purpose of section 1001.36
is to get defendants the mental health help that they need to reap “the benefits of such
treatment to both the offending individual and the community.” (Sarmiento, supra, 98
Cal.App.5th at pp. 892-893.) Denying diversion because the defendant had possibly not
benefited from receiving some, but not all the mental health treatment he needed does not
advance that legislative goal. Ordering Flareau to participate in both kinds of mental
health services “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.
(Whitmill, supra, 86 Cal.App.5th at p. 1149.)
Second, as the District Attorney concedes, the trial court found that Flareau
committed the alleged offenses at least in part because of his mental health issues while
making no clear suitability findings and turning instead to its residual discretion. Again,
“[t]he stated purpose of [the mental health diversion program] is to keep people with
mental disorders from entering and reentering the criminal justice system while
14
protecting public safety.” (Whitmill, supra, 86 Cal.App.5th at p. 1149.) When denying
diversion under its residual discretion, the court’s ruling did not “explain why diversion
would not meet [the] goals” of the diversion program. (See Sarmiento, supra, 98
Cal.App.5th at p. 893.) The District Attorney notably makes no attempt to explain how
the trial court’s ruling advances the program’s goals or the Legislature’s underlying
intent.
Third, and most importantly, the trial court denied diversion primarily because it
found that Flareau’s behavior had “more to do with” his sister’s threats. This, in the
court’s view, showed that Flareau did not fall within the spirit of mental health diversion
program. But section 1001.36 provides that a defendant is eligible for diversion, and thus
should be granted diversion, if suitable, so long as the defendant’s qualifying mental
disorder (see § 1001.36, subd. (b)(1)) was a “motivating factor, causal factor, or
contributing factor.” (Id., subd. (b)(2).) Here, there is no dispute that Flareau’s mental
health disorder was such a factor. Yet, the trial court found Flareau’s case did not “fall
under what was intended by [section] 1001.36” because there was another factor (his
sister’s threats) that was more of a motivating, causal, or contributing factor.
We discern no statutory basis for this distinction. Again, “the Legislature intended
the mental health diversion program to apply as broadly as possible” (Whitmill, supra, 86
Cal.App.5th at p. 1149), and dictated that a defendant is eligible for diversion if their
qualifying mental health disorder was a motivating, causal, or contributing factor to their
commission of the alleged offense. (§ 1001.36, subd. (b); Lacour, supra, 110
15
Cal.App.5th at p. 402.) Nothing in section 1001.36 (or elsewhere) suggests that an
otherwise qualifying defendant can be denied diversion under the court’s residual
discretion if something else was more of a motivating, causal, or contributing factor. The
trial court did not state, the District Attorney does not explain, and we cannot see how the
court’s ruling applies section 1001.36 as broadly as possible or “why diversion [for
Flareau] would not meet [the] goals” of the diversion program. (See Sarmiento, supra,
98 Cal.App.5th at p. 893.)
For these reasons, we conclude the trial court misapplied the law and, in doing so,
abused its residual discretion. (See Vaughn v. Superior Court, supra, 105 Cal.App.5th at
p. 140.) We therefore grant Flareau’s petition.
In his petition, Flareau asks for an order from this court directing the trial court to
vacate its order denying his motion for a mental health diversion and to hold “a formal
mental health diversion in his hearing to consider [his] suitability and the
legislative goals of mental health diversion.” In his traverse, however, Flareau asks us to
direct the trial court to vacate its order and “remand with directions to grant diversion or,
at minimum, to reconsider the motion for diversion under the proper legal standard.”
Given the uncertainty in the record as to the trial court’s findings (see supra, fn. 3) and
the fact that Flareau initially asked only for a remand with further proceedings, we
conclude that is the appropriate remedy.
16
IV.
DISPOSITION
The petition is granted. A peremptory writ of mandate shall issue directing
respondent superior court to vacate its order denying Flareau’s motion for mental health
diversion. The matter is remanded to the respondent superior court with directions to
hold a new hearing on Flareau’s motion for a mental health diversion consistent with this
opinion.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
17
AI Brief
AI-generated · verify before citing
Holding. The trial court abused its residual discretion by denying the defendant's motion for mental health diversion based on an erroneous interpretation of the statutory purpose and eligibility requirements. The court failed to properly apply the legislative intent that the program should be applied as broadly as possible when a mental disorder is a contributing factor to the offense.
Issues
Whether the Court of Appeal has jurisdiction over a petition for writ of mandate regarding a felony complaint.
Whether the trial court abused its residual discretion in denying a motion for mental health diversion under Penal Code section 1001.36.
Disposition. granted
Quotations verified verbatim against the opinion
“We then conclude that the trial court abused its “residual” discretion by denying Flareau’s motion for diversion.”