People v. Tourville

Filed 5/5/26
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION SEVEN


 THE PEOPLE,                         B338176

         Plaintiff and Respondent,   (Los Angeles County
                                     Super. Ct. No.
         v.                          24LBCF00269)

 VINCENT FRANCIS
 TOURVILLE,

         Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Marcelita V. Haynes, Judge. Reversed with
directions.
      Robert L.S. Angres, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney
General, for Plaintiff and Respondent.
                 ______________________________




                                 1
       The trial court denied Vincent Francis Tourville’s motion
for pretrial mental health diversion under Penal Code
section 1001.36 1 but offered that if he entered a no contest plea to
the charged offense, the court would place him on probation to
complete the same mental health and substance abuse treatment
program he would have completed under mental health
diversion. Tourville did just that and now appeals from the
judgment entered after he pleaded no contest to felony corporal
injury to spouse.
       Where, as here, the trial court finds the defendant eligible
and suitable for diversion (including a finding the defendant does
not pose an “unreasonable risk of danger to public safety” under
the statute), requiring the defendant to plead no contest to the
charged offense in order to obtain the treatment necessary to
address a mental disorder is directly at odds with the statute’s
purpose to treat individuals with mental disorders in the
community instead of their entering or reentering the criminal
justice system. This is especially so where the court orders the
identical treatment program in the community that the
defendant would have entered under diversion.
       In this case, the trial court found that Tourville, a military
veteran, acted violently in attacking the mother of his newborn
child and had a history of violence. On this basis the court
doubted whether two years (under the diversion statute) would
be sufficient time to treat Tourville’s post-traumatic stress
disorder (PTSD) and alcohol abuse disorder and to protect the
victim and the public, absent supervision by the probation
department. Although a trial court has residual discretion to


1     Further statutory references are to the Penal Code.




                                  2
deny diversion for reasons consistent with the purposes of the
statute, the court’s denial of diversion based on the perceived risk
to the victim and public, despite a finding that Tourville did not
pose an unreasonable risk of danger to public safety, was an
abuse of discretion. We reverse the judgment and direct the
court to vacate the order denying Tourville’s motion for mental
health diversion and to enter a new order granting the motion
unless there is evidence of changed circumstances that provides a
basis for denying the motion.

      FACTUAL AND PROCEDURAL BACKGROUND

A.     The Offense
       In February 2024 Tourville and E.C. lived in an apartment
with their newborn son. On February 22 police officers
responded to a radio call and found E.C. with the four-day-old
baby in a store parking lot. According to the police report, E.C.
told the officers that she was home with the baby in the early
morning when Tourville came home intoxicated. Tourville picked
the baby up from his crib and held him while stumbling around.
E.C. became concerned, took the baby from Tourville’s arms, and
returned him to his crib. Tourville became enraged and slapped
E.C. multiple times, leaving injuries under her eyes. He grabbed
her, threw her to the ground, and kicked her in the vagina.
Tourville then mounted E.C. and began strangling her with one
hand while smothering her with the other, causing her almost to
lose consciousness.
       Tourville got off E.C., hid E.C.’s phone and debit card, and
went to their bedroom, where he fell asleep. After a few hours,
E.C. took their baby and some belongings and left the apartment
on foot while Tourville was sleeping. E.C. had sustained injuries




                                 3
to her face, arms, and neck. She told the police that she and
Tourville had been dating for two years and had lived together
for the past year. During that period, Tourville hit her in the face
numerous times, but she did not report the incidents to the police
because she was too scared. The prosecution filed a complaint
charging Tourville with one count of corporal injury on a spouse
resulting in a traumatic condition. (§ 273.5, subd. (a).)

B.    Tourville’s Motion for Mental Health Diversion
      On March 4, 2024 Tourville’s attorney filed a motion for
mental health diversion pursuant to section 1001.36. The motion
argued Tourville was eligible for diversion because he was
diagnosed with PTSD from his military service in Iraq and drank
alcohol to suppress his symptoms. Further, his mental disorder
was a significant factor in his commission of the offense. The
motion asserted Tourville met the suitability criteria under
section 1001.36, subdivision (c), because he consented to
diversion; he waived his right to a speedy trial; he was an
appropriate candidate for diversion through a United States
Department of Veterans Affairs (Veterans Affairs) treatment
program that would address his PTSD, substance abuse, and
domestic violence; he did not pose an unreasonable risk of
committing a “super strike” under the statute; and he did not face
prosecution for any offense that would render him ineligible for
diversion.
      Tourville submitted multiple letters from social workers at
Veterans Affairs supporting mental health diversion. A letter
from Veterans Affairs licensed clinical social worker Freda Ayers
provided information on Tourville’s prior treatment through
Veterans Affairs. Tourville first received mental health and
psychiatric treatment in 2017 for depressive disorder. Since that




                                 4
time Tourville had connected with Veterans Affairs in Los
Angeles and received mental health and substance abuse
treatment for his PTSD, anxiety disorder, and alcohol use
disorder. Most recently, he had a psychiatry appointment on
January 30, 2024 and was scheduled for a follow-up psychiatry
appointment on April 15.
       A February 2024 letter from a supervisory social worker
who had interviewed Tourville described the trauma Tourville
suffered in Iraq from 2009 to 2010, his diagnosis with PTSD, and
his excessive use of alcohol to cope with his environment while in
Iraq and to “numb and repress PTSD symptoms” upon his return.
Tourville had told the social worker he wanted to start individual
therapy and learn proactive coping skills to manage his drinking.
       Sergio Antoniuk, a licensed clinical social worker for
Veterans Affairs, stated in a March 2024 letter that a Veterans
Affairs medical doctor had diagnosed Tourville with PTSD, and a
Veterans Affairs psychiatrist had diagnosed Tourville with
“alcohol use disorder, cannabis use disorder, and anxiety
disorder.” Tourville told Antoniuk that he had used alcohol
excessively to address the anxiety and stress from serving in a
war zone, had regularly used alcohol upon his return to cope with
his trauma and civilian life, and on the day of his arrest he had
consumed alcohol and other substances. Tourville acknowledged
“that once he starts drinking it’s difficult for him to regulate his
emotions/behavior, and to control his alcohol use.” Antoniuk
reported that Tourville acknowledged his trauma and his need to
address his PTSD, anger, and alcohol use, and he was motivated
to participate in clinical treatment to address his mental health
issues.




                                 5
      Antoniuk stated in a second March letter following an in-
depth interview that Tourville had been accepted into the
Veterans Affairs Domiciliary Residential Rehabilitation Program
(DOM), which would provide dual-diagnosis treatment and
medical services. Upon completion of the DOM program,
Veterans Affairs would provide outpatient individual therapy,
outpatient psychiatry, and outpatient substance abuse treatment.
A letter from the Community Veteran Justice Project stated it
had performed an in-custody intake, and it would provide a case
worker to ensure Tourville received comprehensive services
during his transition from a residential to an outpatient
treatment program.
      E.C. submitted a letter to the trial court in which she
stated she wanted Tourville to receive treatment for his addiction
and mental health issues and to break the cycle of domestic
violence. She recounted that Tourville had suffered severe
sexual, physical, and mental abuse as a small child and was
raised by an alcoholic caregiver and a mother who was physically
abused. Further, he suffered “severe shell shock” and a
“traumatic brain injury” while in Iraq. Tourville was a “sweet
loving man” when he was sober. She added that on the night of
the abuse incident, Tourville was “so intoxicated, and not his
normal self.” She urged the court to provide Tourville treatment
instead of jail time.
      In its opposition, the prosecution argued that Tourville did
not meet the eligibility requirements under section 1001.36
because he failed, among other things, to show his mental
disorder played a significant role in the offense, his disorder
would respond to mental health treatment, and he would not
pose an unreasonable risk of danger to public safety. Further,




                                6
Antoniuk’s letter failed to address Tourville’s PTSD symptoms,
instead focusing only on his alcohol abuse, and Tourville did not
submit any mental health evaluations or military records of his
service.
       The opposition stated Tourville had a sustained juvenile
petition for robbery in 2001, a misdemeanor conviction for
evading arrest in 2007, and a 2015 misdemeanor conviction for
careless driving. In addition, Tourville had arrests in 2015 for
harassment and a “domestic assault” (but no conviction) and an
April 2019 misdemeanor conviction for violating a protective
order. The opposition asserted the domestic assault arrest
related to Tourville’s alleged assault of a different woman (M.D.)
that occurred while Tourville was visiting their five-month-old
child. Tourville claimed M.D. was the aggressor. The April 2019
violation of a protective order also involved M.D. The prosecution
argued that Tourville was at risk of committing a super strike
given the circumstances of the current offense.
       In his reply, Tourville provided additional details on
his prior criminal history, explaining with respect to the
arrest for domestic assault that Tourville and M.D. each
alleged the other committed an assault. There were no
visible injuries, and the case was dismissed. The 2016
“harassment” referred to a police report (without an arrest)
in which M.D. reported that Tourville contacted M.D. by
phone, but M.D. did not want contact. In March 2019 M.D.
reported to the police that she ran into Tourville at the
grocery market, and he demanded to see his son. Tourville’s
misdemeanor conviction for violating a protective order
arose out of an incident in which Tourville drove his car into
the parking lot of M.D.’s apartment complex, stopped his




                                7
car, waved his hands, and appeared to yell at M.D.; M.D.
was able to drive around Tourville’s car and leave.
       Tourville also submitted an April 8, 2024 letter from
Antoniuk in which Antoniuk expressed his “professional clinical
opinion” that if Tourville were to “wholeheartedly engage in
residential treatment” in the DOM program and maintain
ongoing outpatient mental health care, “he would more likely
than not experience a clinically significant benefit.”
       The trial court held a hearing on Tourville’s motion on
April 11, 2024. At the outset of the hearing, the court stated it
had read the case file, the complaint, the police reports, and the
reports from mental health experts Antoniuk and Ayers. The
court then inquired of Ayers and Antoniuk what treatment
Tourville had received from Veterans Affairs prior to the incident
with respect to PTSD, anxiety disorders, and substance abuse,
and why it had not prevented him from committing the current
offense. Ayers responded that in 2017 Tourville was receiving
treatment at Veterans Affairs for depressive disorders, but he
had never received treatment for PTSD. Antoniuk confirmed
that Tourville had only received outpatient mental health
treatment for depression and added that Tourville had never
been in an intensive residential program that provided treatment
for trauma and substance abuse.
       The trial court then asked Ayers about the statement in his
report that Tourville saw a psychiatrist at the Veterans Affairs
facility on January 30, 2024. Ayers clarified that at the
January 30 visit, Tourville was diagnosed with PTSD, but his
first appointment for treatment was scheduled for April 15, 2024
(after the February incident). The court observed that E.C. had
filed a letter requesting the court order treatment instead of




                                8
incarceration. Tourville’s attorney confirmed E.C. still wanted
Tourville to receive counseling instead of jail time.
       The trial court stated it had two options for treatment: It
could find Tourville eligible and suitable for diversion, or it could
accept a change of plea from Tourville and place him on probation
to complete the same treatment program. The court explained it
was “leaning towards probation” because “the PTSD does not
appear to be a significant factor in the commission of the offense.
The substance abuse does appear to be a significant factor.” The
court added that “the facts of the case lead me towards not
granting diversion.”
       Tourville’s attorney argued the mental health diversion
statute was enacted to assist defendants like Tourville, a veteran
who had served in combat with a diagnosis of PTSD and alcohol
and substance abuse. Further, Tourville’s prior contacts with
police included a few arrests and misdemeanor convictions, but
no felonies or crimes involving a weapon. In addition, the
prosecution’s prior offer for Tourville to submit to treatment
instead of jail time showed that the prosecution was amenable to
Tourville being released. Accordingly, Tourville did not pose an
unreasonable risk of danger to public safety.
       The prosecutor argued that neither Tourville’s PTSD nor
his alcohol use was a significant factor in the commission of the
offense, noting Tourville had received mental health services in
the past but continued to commit domestic violence. Further,
Tourville had been hitting E.C. on a regular basis. The trial
court rejected this argument, stating “there’s no doubt in the
court’s mind that the substance abuse was a significant factor in
the commission of the offense.” The court also found that
Tourville did not pose a risk of committing a super strike.




                                 9
       However, the trial court expressed a concern that given
Tourville’s history of violence and the violent nature of the crime,
even if Tourville was eligible, “the crime may not be suitable for
diversion.” The court stated it was “stuck on the facts of the
crime” and explained, “The nature of kicking someone four days
after the birth of their child in the vagina is, I don’t think,
suitable for diversion.”
       The trial court continued, “The issue is whether diversion is
an appropriate vehicle where I become the probation officer, and
I don’t have time to be his probation officer. If I put him in
treatment on probation, I’ve got the treatment team, Ms. Ayers
and the treatment team at the DOM, [as] well as the probation
officer that is overseeing this.” The court added, “I don’t think
that two years, given his history, given the facts of this case,
given his diagnosis [of PTSD], is a suitable time frame for the
court to protect the public and protect the alleged victim.”
       At the conclusion of the hearing the trial court denied
Tourville’s motion, stating, “I don’t think [the offense is] suitable
for diversion. I’m offering him . . . time served and treatment
through the V.A. and probation.”

C.    Tourville’s No Contest Plea and Sentencing
      On April 12, 2024 Tourville waived his rights and pleaded
no contest to felony corporal injury to spouse. The trial court
suspended imposition of sentence and placed Tourville on three
years of formal probation on the condition he serve 101 days in
county jail with credit for time served and conduct credits. The
court ordered, among other conditions, that Tourville be released
to Veterans Affairs to enroll in and complete the DOM residential
treatment program for a minimum of 90 days (and a maximum of
one year), followed by an outpatient treatment program as




                                 10
directed by Veterans Affairs or the court. In addition, the court
ordered Tourville to complete a 52-week domestic violence
counseling program through Veterans Affairs; to submit to
periodic testing for narcotics, controlled substances, and alcohol;
and not to drink or possess any alcoholic beverages, use or
possess marijuana, or use or possess any narcotics or restricted
drugs without a prescription. The court also ordered Tourville to
obey a protective order requiring him to have no contact with and
stay 100 yards away from E.C. and where she lives, works, or
goes to school (except for the safe exchange of children pursuant
to a court order), and not to harass or use or threaten to use force
or violence against E.C. The court said to Tourville, “I’m taking
faith in you that you really want to change and be a different
person and treat the demons that have been chasing you for so
long.” Tourville responded that he wanted to change for himself
and his family.
       Tourville timely appealed, and the trial court granted his
request for a certificate of probable cause. 2

                           DISCUSSION

A.    Governing Law and Standard of Review
      Section 1001.36 gives trial courts the discretion to grant
pretrial diversion for individuals suffering from certain mental
health disorders. (People v. Frahs (2020) 9 Cal.5th 618, 626;
People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147-1148


2     A defendant may appeal the denial of pretrial diversion
following a plea of guilty or no contest by obtaining a certificate of
probable cause. (People v. Whitmill (2022) 86 Cal.App.5th 1138,
1147; People v. Padfield (1982) 136 Cal.App.3d 218, 228.)




                                 11
(Whitmill).) Under pretrial diversion, the trial court may
postpone prosecution at any time in the judicial process, either
temporarily or permanently, to allow the defendant to undergo
mental health treatment. (Frahs, at p. 626; Vaughn v. Superior
Court (2024) 105 Cal.App.5th 124, 133 (Vaughn); Whitmill, at
p. 1148.) “The Legislature intended the mental health diversion
program to apply as broadly as possible.” (Whitmill, at p. 1149;
see Frahs, at p. 632.)
       Under section 1001.36, a defendant must be both eligible
and suitable for mental health diversion. A defendant is eligible
under section 1001.36, subdivision (b), if (1) the defendant has
been diagnosed by a qualified mental health expert with a mental
disorder as identified in the most recent edition of the Diagnostic
and Statistical Manual of Mental Disorders; and (2) the
defendant’s mental disorder was a significant factor in the
commission of the charged offense. (See Vaughn, supra,
105 Cal.App.5th at p. 133; Sarmiento v. Superior Court (2024)
98 Cal.App.5th 882, 891 (Sarmiento).)
       The statute specifies four factors that must be met for a
defendant to be suitable for diversion: (1) in the opinion of a
qualified mental health expert the defendant’s mental disorder
would respond to treatment; (2) the defendant consents to
diversion and agrees to waive his or her speedy trial rights;
(3) the defendant agrees to comply with treatment requirements;
and (4) if treated in the community, the defendant will not pose
an “unreasonable risk of danger to public safety” as defined in
section 1170.18. (§ 1001.36, subd. (c)(1)-(4); Sarmiento, supra,
98 Cal.App.5th at pp. 891-892.) Section 1001.36, subdivision (e),
places the burden on the defendant “to make a prima facie
showing that the defendant will meet the minimum requirements




                                12
of eligibility for diversion and that the defendant and the offense
are suitable for diversion.” (See Vaughn, supra, 105 Cal.App.5th
at p. 134.)
       “An unreasonable risk of danger to public safety as defined
in section 1170.18, subdivision (c), means ‘“an unreasonable risk
that the [defendant] will commit a new violent felony”’ within the
meaning of section 667, subdivision (e)(2)(C)(iv), which felonies
are ‘colloquially referred to as “super strikes.”’ [Citation.] ‘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.’” (Gomez v. Superior Court (2025)
113 Cal.App.5th 671, 679 (Gomez); accord, Whitmill, supra,
86 Cal.App.5th at p. 1149; People v. Moine (2021) 62 Cal.App.5th
440, 449-450.) “Thus, the risk of danger is narrowly confined to
the likelihood the defendant will commit a [super strike].”
(Moine, at p. 450; accord, Gomez, at p. 690; Whitmill, at p. 1151;
People v. Williams (2021) 63 Cal.App.5th 990, 1001.) In addition,
under section 1001.36, subdivision (d), defendants are not eligible
for mental health diversion if they are charged with murder,
voluntary manslaughter, an offense requiring sex offender
registration (except for indecent exposure), specified sex offenses,
or offenses involving weapons of mass destruction.
       If the defendant makes a prima facie showing that he or
she meets all the statutory eligibility and suitability criteria, the
trial court still has discretion to deny diversion. (People v.
Cabalar (2025) 117 Cal.App.5th 41, 53 (Cabalar); Vaughn, supra,
105 Cal.App.5th at p. 134; Sarmiento, supra, 98 Cal.App.5th at




                                 13
p. 892.) In the amendments effective January 1, 2023, the
Legislature “underscored that diversion is not mandatory by
adding an express reference to the court’s discretion that did not
previously exist: ‘On an accusatory pleading alleging the
commission of a [qualifying offense], the court may, in its
discretion, . . . grant pretrial diversion.’” (Cabalar, at p. 54, citing
§ 1001.36, subd. (a), italics added; see Senate Bill No. 1223 (2021-
2022 Reg. Sess.); Stats. 2022, ch. 735, § 1 (Senate Bill 1223).)
“Notably, the 2023 amendments did not change permissive
language in the very provision of the statute which empowers the
trial court to grant pretrial mental health diversion in the first
instance. Both before and after the amendments, the statute
says a court ‘may’ grant diversion to a defendant who meets the
specified statutory criteria.” (Cabalar, at pp. 53-54.)
       However, “while it is clear a trial court retains ‘residual’
discretion to deny diversion even if all the threshold
requirements are met, that does not mean . . . [the court] could
reject a request for diversion based on an alternative meaning of
‘public safety’ inconsistent with the specific statutory definition
in section 1001.36, subdivision (c)(4). In the guise of exercising
its ‘residual’ discretion, a court is not permitted to redefine public
safety in a manner inconsistent with the Legislature’s expressed
intent.” (Sarmiento, supra, 98 Cal.App.5th at p. 896; accord,
Gomez, supra, 113 Cal.App.5th at p. 691 [“The trial court cannot
invoke its residual discretion to create a lower standard for
finding that the facts and circumstances of the robbery indicate
diversion would not protect public safety.”].)
       We review the trial court’s decision to grant or deny a
motion for mental health diversion for abuse of discretion.
(Vaughn, supra, 105 Cal.App.5th at p. 135; Whitmill, supra,




                                  14
86 Cal.App.5th at p. 1147.) A court abuses its discretion when it
makes an arbitrary decision by applying the wrong legal
standard or bases its decision on express or implied factual
findings that are not supported by substantial evidence.
(Vaughn, at p. 135; Whitmill, at p. 1147.)

B.    The Trial Court Abused Its Discretion in Finding Tourville
      Was Unsuitable for Diversion
      Tourville contends the trial court abused its discretion in
finding he was unsuitable for mental health diversion based on
the violent nature of the crime and the court’s reluctance to
supervise Tourville’s rehabilitation in place of a probation officer.
He also argues the court erred in considering whether he could be
rehabilitated within two years. The Attorney General responds
that the court properly considered these factors as part of its
residual discretion to deny mental health diversion. We agree
with Tourville that the court abused its discretion.
      As discussed, the trial court found Tourville was eligible for
mental health diversion under section 1001.36, subdivision (b), in
that (1) qualified medical experts at Veterans Affairs recently
diagnosed Tourville with PTSD and alcohol use disorder; and
(2) Tourville’s substance abuse was a significant factor in the
commission of the offense. In addition, the court found the
disputed suitability factors under section 1001.36, subdivision (c),
were met: Antoniuk opined that treatment in the DOM
residential program for Tourville’s PTSD and substance abuse
was more likely than not to result in a “clinically significant
benefit” to Tourville, and Tourville did not pose a risk of
committing a super strike. The other two factors were not in
dispute: Tourville consented to diversion and waived his speedy




                                 15
trial rights, and he agreed to comply with the Veterans Affairs
treatment program requirements.
       Notwithstanding the trial court’s finding that Tourville met
the suitability factors under section 1001.36, subdivision (c), the
court found the facts of the offense—that Tourville violently
kicked E.C. in the vagina and strangled her just four days after
giving birth to their child—rendered the offense not “suitable for
diversion.” A trial court may consider the circumstances of the
offense in deciding whether the defendant’s mental disorder was
a significant factor in the commission of the charged offense, or
whether the defendant is likely to commit a super strike, but it is
not otherwise a listed factor for determining a defendant’s
eligibility or suitability for diversion under section 1001.36,
subdivisions (b) and (c).
       To the extent the trial court was exercising its residual
discretion to deny diversion based on the violent nature of
Tourville’s abuse of E.C. and his history of domestic violence to
protect E.C. and the public, this was simply another way of
stating that Tourville posed an unreasonable risk of danger to
public safety without supervision by the criminal justice
system—a finding defined by statute to include only the risk he
would commit a super strike. (Gomez, supra, 113 Cal.App.5th at
p. 691; Sarmiento, supra, 98 Cal.App.5th at p. 897.)
       As the court in Sarmiento explained, denial of diversion
based on risk factors beyond the statutory factors would be
inconsistent with the legislative purposes of the statute,
observing “the Legislature has made it abundantly clear that for
persons with diagnosed disorders, mental health treatment
provides the best strategy for breaking the cycle of criminal
recidivism.” (Sarmiento, supra, 98 Cal.App.5th at p. 897; accord,




                                16
Gomez, supra, 113 Cal.App.5th at p. 691; People v. Qualkinbush
(2002) 79 Cal.App.5th 879, 891-892 (Qualkinbush).)
       Our dissenting colleague concludes the language of
section 1001.36, subdivision (a) (in stating a trial court “may, in
its discretion” grant diversion), and the legislative history of the
mental health diversion statute support a contrary holding—that
a court may exercise its discretion to deny mental health
diversion where the defendant poses a serious risk of danger to
public or victim safety even if the defendant, as here, is not likely
to commit a super strike. (Dis. opn., post, at pp. 2-3.)
       The dissent’s position would be more compelling if section
1001.36, subdivision (c)(4), stated as a suitability requirement
that the trial court must find the defendant “will not pose an
unreasonable risk of danger that the defendant will commit a
super strike.” But it does not. Section 1001.36, subdivision (c)(4),
instead states the court must find the defendant “will not pose an
unreasonable risk of danger to public safety, as defined in section
1170.18.” (Italics added.) And section 1170.18, subdivision (c),
clarifies that an “unreasonable risk of danger to public safety” is
defined as an unreasonable risk of committing a super strike.
Thus, the Legislature has specifically defined what constitutes
“an unreasonable risk of danger to public safety” under the
statute, limiting it to the danger the defendant will commit a
super strike.
       As a matter of statutory interpretation, we cannot interpret
a trial court’s discretion under section 1001.36, subdivision (a), to
include denial of mental health diversion based on a finding of an
unreasonable risk of danger to public safety that is inconsistent
with the definition of that term in subdivision (c)(4). (See
Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 804 [“‘We do




                                 17
not consider statutory language in isolation; instead, we examine
the entire statute to construe the words in context.’”]; People v.
Shabazz (2006) 38 Cal.4th 55, 67-68 [“An interpretation that
renders related provisions nugatory must be avoided [citation];
each sentence must be read not in isolation but in light of the
statutory scheme”].)
       Moreover, in interpreting the Legislature’s intent in
enacting the mental health diversion statute, many courts have
relied on the stated purpose of the statute in section 1001.35,
subdivisions (a) and (c), to promote “[i]ncreased diversion of
individuals with mental disorders to mitigate the individual’s
entry and reentry into the criminal justice system while
protecting public safety” and to “provid[e] diversion that meets
the unique mental health treatment and support needs of
individuals with mental disorders.” (See Gomez, supra,
113 Cal.App.5th at p. 691; Vaughn, supra, 105 Cal.App.5th at
p. 138; Sarmiento, supra, 98 Cal.App.5th at p. 69; Whitmill,
supra, 86 Cal.App.5th at p. 1149; Qualkinbush, supra,
79 Cal.App.5th at pp. 891-892 [trial court abused its discretion in
finding defendant was unsuitable for mental health diversion
based on use of force in committing crime and history of violence,
contrary to “the goals of promoting increased diversion of
individuals with mental disorders to mitigate their entry and
reentry into the criminal justice system while protecting public
safety”].)
       The dissent criticizes this line of cases, arguing that in
focusing on the legislative goal to increase diversion, these cases
failed to consider the related goal of “protecting public safety,”
citing the dissent in Sarmiento, supra, 98 Cal.App.5th at
page 909 (dis. opn. of Irion, J.). (See dis. opn., post, at pp. 3-4.)




                                 18
However, as the Legislature made clear in Senate Bill No. 215
(2017-2018 Reg. Sess.) (Senate Bill 215), which amended
section 1001.36 a few months after the diversion statute was
enacted, 3 providing greater opportunities for mental health
diversion protects public safety by rehabilitating mentally ill
individuals and reducing the rate at which they reoffend.
According to the Assembly Committee on Public Safety’s report
on Senate Bill 215, in describing the need for the bill, ‘“[b]ecause
diversionary sentences take advantage of existing community
resources for the mentally ill, research suggests that such
sentences will save counties money in the short-term on reduced
trial and incarceration costs, and in the long-term based on
reduced recidivism rates.’” (Assem. Com. on Public Safety, Rep.
on Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Jan. 25,
2018, p. 5, italics added; see Sen. Floor Analysis Unit, Sen. 3d
reading analysis of Sen. Bill No. 215 (2017-2018 Reg. Sess.) as
amended Aug. 23, 2018, p. 3 [same].) The Assembly Committee
on Appropriations analysis of Senate Bill 215 likewise stated that


3      The Legislature enacted sections 1001.35 and 1001.36 as
part of Assembly Bill No. 1810 (2017-2018 Reg. Sess.), which was
an omnibus budget bill that took effect immediately.
(Stats. 2018, ch. 34, § 24; see People v. Frahs, supra, 9 Cal.5th at
p. 626.) Senate Bill 215 amended section 1001.36 to provide in
subdivision (b)(2) that murder, rape, and other specified crimes
are ineligible for diversion. (See Frahs, at p. 627.) The Supreme
Court in Frahs considered Senate Bill 215 in discerning the
Legislature’s intent in enacting section 1001.36 just a few months
earlier. (See, e.g., Frahs, at p. 635 [noting the analysis of Sen.
Bill 215 found that “community-based treatment for a mentally
ill individual costs much less than jailing the same individual,
and greatly reduces recidivism”].)




                                19
mentally ill defendants whose mental illness may have
contributed to their crime “are likely to reoffend if they do not
receive treatment for their underlying mental illness.” (Assem.
Com. on Appropriations, Analysis of Sen. Bill No. 215 (2017-2018
Reg. Sess.) as amended June 14, 2018, p. 1.)
       The dissent also relies on the analysis by the Senate
Committee on Public Safety with respect to Senate Bill 1223 (and
a similar analysis by the Assembly Committee on Public Safety),
which cite a portion of a memorandum prepared by Judge
J. Richard Couzens (Ret.), titled Memorandum RE: Mental
Health Diversion (Penal Code §§ 1001.35-1001.36) (AB 1810 &
SB 215) [revised] (Nov. 14, 2018) (Couzens memorandum). (See
Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1223 (2021-
2022 Reg. Sess.) March 9, 2022, p. 7.) The Couzens
memorandum, as quoted in the Senate committee report, states
in a section titled “Mental Health Diversion Law” that “[t]he law
gives discretion to courts to grant diversion if the minimum
standards are met, and, correspondingly, refuse to grant
diversion even though the defendant meets all of the
requirements.” (Id. at pp. 6-7, boldface omitted.) The
memorandum then lists a number of reasons the trial court
might deny mental health diversion despite a defendant meeting
the minimum standards, including the lack of availability of a
suitable treatment program for a defendant with a higher
disability level; a defendant’s history of treatment that shows the
prospects of success in another diversion program are poor; the
defendant’s conduct in prior treatment programs makes the
defendant unsuitable; and a mental health court would provide a




                                20
better alternative (for example, a different diversion program). 4
(Ibid.) We agree with this portion of the analysis.
       As the dissent points out at pages 5 and 6, however, the
committee reports also cite, in describing the then-existing
mental health diversion law, a portion of the Couzens
memorandum that states, “‘Clearly the court is not limited to
excluding persons only because of the risk of committing a “super
strike”—the right to exclude because of dangerousness goes well
beyond that limited list. In short, the court may consider any
factor relevant to whether the defendant is suitable for
diversion.’” (See Assem. Com. on Public Safety, Rep. on Sen. Bill
No. 1223 (2021-2022 Reg. Sess.) as amended June 23, 2022, p. 5.)
We do not find the March 2022 committee reports’ citation to


4      To some extent, these examples of discretion may fall
within the suitability requirement in section 1001.36,
subdivision (c)(1), that “[i]n the opinion of a qualified mental
health expert, the defendant’s symptoms of the mental disorder
causing, contributing to, or motivating the criminal behavior
would respond to mental health treatment.” However, a qualified
expert could opine that the defendant’s symptoms would respond
to mental health treatment yet there are no treatment programs
available for the defendant’s specific needs, or under a prior grant
of diversion, the defendant could have consistently relapsed or
continued to commit crimes before the end of the program. As to
the fourth example in the Couzens memorandum, if a trial court
offers a different mental health diversion program that better
suits the defendant’s mental health needs and meets the
Legislature’s goals in enacting the mental health diversion
program, it would be a reasonable exercise of discretion for the
court to grant the defendant diversion under that program, as
long as the program does not require the defendant to plead to
the underlying charges.




                                21
Judge Couzens’s November 2018 memorandum interpreting the
existing law persuasive in determining the Legislature’s intent in
enacting section 1001.36 in June 2018.
       As the Supreme Court explained in McClung v.
Employment Development Dept. (2004) 34 Cal.4th 467, 473, “[I]f
the courts have not yet finally and conclusively interpreted a
statute and are in the process of doing so, a declaration of a later
Legislature as to what an earlier Legislature intended is entitled
to consideration. [Citation.] But even then, ‘a legislative
declaration of an existing statute’s meaning’ is but a factor for a
court to consider and ‘is neither binding nor conclusive in
construing the statute.’ [Citation.] This is because the
‘Legislature has no authority to interpret a statute. That is a
judicial task. The Legislature may define the meaning of
statutory language by a present legislative enactment which,
subject to constitutional restraints, it may deem retroactive. But
it has no legislative authority simply to say what it did mean.’”
(See Western Security Bank v. Superior Court (1997) 15 Cal.4th
232, 244 [“there is little logic and some incongruity in the notion
that one Legislature may speak authoritatively on the intent of
an earlier Legislature’s enactment when a gulf of decades
separates the two bodies. [Citation.] Nevertheless, the
Legislature’s expressed views on the prior import of its statutes
are entitled to due consideration, and we cannot disregard
them.”].) 5


5      We note the same analysis by the Senate Committee on
Public Safety on Senate Bill 1223 again made clear that the
Legislature’s intent in enacting section 1001.36 was to protect
public safety by increasing diversion of mentally ill defendants
into treatment programs instead of incarceration. (See Sen. Com.




                                22
      Since 2021 the appellate courts have consistently
interpreted the mental health diversion statute to limit a trial
court’s discretion to deny diversion based on a risk of danger to
public safety to the likelihood the defendant will commit a super
strike. (See People v. Moine, supra, 62 Cal.App.5th at p. 450;
People v. Williams, supra, 63 Cal.App.5th at p. 1001; Whitmill,
supra, 86 Cal.App.5th at p. 1151; Sarmiento, supra,
98 Cal.App.5th at p. 897; Gomez, supra, 113 Cal.App.5th at
p. 690.) “[T]he Legislature is presumed to know about existing
case law when it enacts or amends a statute.” (In re W.B. (2012)
55 Cal.4th 30, 57; accord, People v. Rhodius (2025) 17 Cal.5th
1050, 1062.) We assume, therefore, that the Legislature was
aware of the appellate courts’ consistent interpretation of a
court’s limited discretion to deny mental health diversion based
on a risk to public safety, yet the Legislature has amended
section 1001.36 seven times since 2022 without amending the
language used in section 1001.36, subdivision (c)(4). 6

on Public Safety, Analysis of Sen. Bill No. 1223 (2021-2022 Reg.
Sess.) March 9, 2022, p. 9 [“‘California enacted AB 1810, which
authorized courts to divert people with mental health
conditions . . . out of the carceral system and into treatment. By
ensuring that these people are connected to meaningful, long-
term mental health treatment instead of simply jailed and
released, the diversion statute protects public safety by lowering
recidivism rates . . . and leads to better outcomes for these
individuals and their families.’” (Italics added.)].)
6     See Sen. Bill No. 184 (2021-2022 Reg. Sess.); Stats. 2022,
ch. 47, § 38, eff. June 30, 2022; Sen. Bill No. 1223 (2021-2022
Reg. Sess.); Stats. 2022, ch. 735, eff. Jan 1, 2023; Assem. Bill
No. 455 (2023-2024 Reg. Sess.); Stats. 2023, ch. 236, § 1, eff.
Jan. 1, 2024; Assem. Bill No. 1412 (2022-2023 Reg. Sess.); Stats.
2023, ch. 687, § 1.2, eff. Jan. 1, 2024; Sen. Bill No. 159 (2023-2024




                                 23
      A pending bill proposed in February 2026 would replace the
language in section 1001.36, subdivision (c)(4) (defining an
unreasonable risk of public safety to be the risk of committing a
super strike), with a requirement that “[t]he defendant will not
pose a substantial and undue risk to the physical safety of another
person if treated in the community.” (Sen. Amend. to Assem. Bill
No. 1373 (2025-2026 Reg. Sess.) April 15, 2026, p. 4.) 7 The bill
also adds to the list of excluded charged offenses, “[c]orporal
injury . . . that causes great bodily injury.” (Id., p. 6.) The
analysis by the Senate Committee on Public Safety states the
author proposed the legislation to prevent misuse of mental
health diversion “‘“as a get-out-of-jail-free” card by violent
criminals,’” noting the bill “‘restores judicial discretion to make
evidence-based decisions, and prioritizes public safety and
victims’ rights, while allowing legitimate cases to qualify for
mental health treatment.’” (Sen. Com. on Public Safety, Rep. on
Sen. Bill No. 1373 (2025-2026 Reg. Sess.) April 15, 2026, p. 5.) As
part of its analysis, the committee report cites to Sarmiento,


Reg. Sess.); Stats. 2024, ch. 40, § 30, eff. June 29, 2024; Sen. Bill
No. 1323 (2023-2024 Reg. Sess.); Stats. 2024, ch. 646, § 1, eff.
Jan. 1, 2025; Sen. Bill No. 1400 (2023-2024 Reg. Sess.); Stats.
2024, ch. 647, § 1.5, eff. Jan. 1, 2025.
7     Legislation was proposed in 2025, specifying that “the court
retains the discretion [pursuant to subdivision (a)] to deny
pretrial diversion if it concludes that, despite the proposed
treatment program and any available terms and conditions of
diversion, the defendant poses an unreasonable risk to the
physical safety of another.” (Assem. Com. on Public Safety, Rep.
on Sen. Bill No. 483 (Reg. Sess. 2025-2026) as amended July 9,
2025, p. 2.) However, the bill was held in the Senate
Appropriations Committee.




                                  24
Whitmill, Qualkinbush, and Vaughn, consistent with our
presumption that the Legislature is aware of existing case
authority. (See Sen. Com. on Public Safety, Rep. on Sen. Bill
No. 1373, at pp. 6-7.)
       If the Legislature believes the trial courts should have
greater discretion to deny diversion based on other public safety
factors, it can pass legislation to do so. We recognize there are
policy reasons for the courts to have greater discretion to deny
mental health diversion, as well as reasons to limit judicial
discretion to expand access to mental health diversion. That is a
policy decision for the Legislature to make in the first instance,
and until it does, we interpret the mental health diversion
statute consistent with the current language and legislative
intent in enacting the statute.
       Requiring Tourville to plead no contest to the charged
offense to obtain the treatment he needs for his mental disorders
is directly at odds with the legislative purpose to provide mental
health diversion as broadly as possible to keep individuals with
mental health disorders out of the criminal justice system,
especially given that the proposed program under diversion (the
Veterans Affairs DOM program followed by outpatient
treatment) is the same program the court imposed as a condition
of probation. (See Qualkinbush, supra, 79 Cal.App.5th at p. 892,
fn. 9 [“The fact that the court granted probation and imposed a
condition that Qualkinbush be released to a residential treatment
program suggests that the court implicitly found that
Qualkinbush in fact would not pose a danger to the community if
released from custody.”].)
       The Attorney General contends the trial court acted within
its residual discretion in finding that Tourville “could benefit




                               25
more from the treatment team that would be available to him on
probation than if he was placed on [mental health] diversion.”
The court’s conclusion that the mental health diversion program
would not provide adequate supervision without the oversight of
the probation department ignores the safeguards built into the
statutory diversion program. As the Court of Appeal explained in
Cabalar, supra, 117 Cal.App.5th at page 58, “A person granted
mental health diversion will be undergoing inpatient or
outpatient treatment (§ 1001.36, subd. (f)(1)), and the statute
requires ‘[t]he provider of the mental health treatment program
in which the defendant [is] placed [to] provide regular reports to
the court, the defense, and the prosecutor on the defendant’s
progress in treatment’ (id., subd. (f)(1)(B)). In addition, if the
person ‘is performing unsatisfactorily in the assigned program,’
(id., subd. (g)(4)(A)), or is charged with an additional offense or is
engaging in criminal conduct during diversion, the court must
hold a hearing to determine whether to, inter alia, modify
treatment or reinstate criminal proceedings. (Id., subd. (g).)”
(Fn. omitted.)
       As the court in Cabalar concluded, “[T]o the extent the
court in this case relied on a lack of ability to monitor a person’s
activity and progress while participating in diversion as a basis
for denial of Cabalar’s motion, it did so in reliance on an incorrect
statement of the law.” (Cabalar, supra, 117 Cal.App.5th at
pp. 58-59.) The court in Cabalar noted, for example, that “[t]he
statutory scheme leaves it to the trial court to use its discretion
to establish, with input from the parties, the particularities of the
regular reporting, which may include, for example, the required
frequency, the necessary level of detail, and/or circumstances
triggering a need for immediate notice to the court.” (Id. at p. 59,




                                 26
fn. 7; see § 1001.36, subd. (l) [referring to progress reports].) We
also see no reason why the trial court in this case could not have
required Veterans Affairs to provide periodic drug testing (a
typical part of a drug treatment program) to ensure Tourville’s
compliance with the terms of diversion. In addition, the statute
provides that the prosecution may request the court order a
defendant be prohibited from possessing a firearm until the
defendant successfully completes diversion. (§ 1001.36,
subd. (m)(1).)
       In this case, Tourville will have the benefit of oversight by
Veterans Affairs (during both inpatient and outpatient services)
and a dedicated case worker from the Community Veteran
Justice Project to ensure he receives the necessary services.
Although Tourville would not need to report to a probation officer
on a monthly basis, the court could have required that Veterans
Affairs provide monthly progress reports to the court and counsel,
thus alerting the court promptly if Tourville had relapsed or
otherwise was not in compliance with the treatment program.
This would minimize any risk of Tourville leaving the program
early without the court promptly learning of the noncompliance
or relapse. We recognize the court’s concern that it does not
“have time to be [Tourville’s] probation officer,” and certainly
reviewing the treatment team’s progress reports will consume
valuable court time. But that is part of the court’s role as
envisioned by the mental health diversion statute, in an effort to
keep as many individuals as possible out of the criminal justice
system while protecting public safety.
       In addition, Tourville sought out treatment from Veterans
Affairs and was motivated to obtain treatment to change his
behavior. As Antoniuk opined, “The fact [Tourville] has been able




                                27
to clearly acknowledge his trauma, identify his errors in turning
to substances, and that he has been able to look beyond the rigid
repressive coping style instilled by the military and start to share
his emotional struggles speaks to his sincere willingness to work
toward change.” We agree with the dissent that there will be
cases where probation will best serve a defendant with a mental
disorder (dis. opn., post, p. 10), but the decision that a
probationary sentence is necessary in lieu of mental health
diversion must be made consistent with the purposes of the
statute. The trial court, in assuming it could only protect public
safety by placing Tourville under the watchful eye of the
probation department, was assuming at the outset that Tourville
would otherwise fail, contrary to the legislative preference for
treatment of mental health disorders outside of the criminal
justice system.
       In denying Tourville’s motion, the trial court also
improperly considered whether a two-year mental health
treatment program would be sufficient to address Tourville’s
mental health disorders. We recognize a trial court’s legitimate
concern that a defendant like Tourville—with a history of
violence who has committed a violent offense—could undergo
treatment for two years then commit another offense (even a
violent offense). But nowhere in section 1001.36 is there a
requirement that a court find a defendant will be rehabilitated
within a specified period of time in order to be suitable for
diversion. Further, the diversion statute has built-in guardrails:
Prosecution of a criminal felony offense is postponed for a period
of two years to allow for mental health treatment (§ 1001.36,
subd. (f)(1) & (1)(C)(i)), and criminal proceedings may be
reinstated under specified circumstances, including if the




                                28
defendant engages in new criminal conduct or performs
unsatisfactorily in the treatment program (id., subd. (g)(1)-(4)).
       The trial court’s denial of diversion based on the possibility
that it would take longer than two years for Tourville to address
his mental disorders turns the statute on its head by deciding in
advance that the treatment would not be successful instead of
allowing two years to see if treatment can succeed, and only
reinstating criminal proceedings if it does not. Further, the
Legislature has made clear its view that an eligible defendant
who does not pose a risk of committing a super strike, if provided
the necessary treatment, is less likely to re-offend, and instead
will break the cycle of entering and reentering the criminal
justice system.
       The Attorney General suggests that if we find the trial
court failed adequately to state its reasons for exercising its
discretion to deny diversion, we should conditionally reverse for
the court to “provide a more robust explanation of its decision.”
However, given our rejection of the reasons argued by the
Attorney General to support the court’s exercise of its residual
discretion and that two years have passed since the court denied
Tourville’s motion for mental health diversion, we reverse the
judgment and order the court to vacate its order denying the
motion. We direct the court to enter a new order granting
Tourville’s motion for mental health diversion unless there is
evidence of changed circumstances that provide a basis for
denying the motion consistent with this opinion, in which case
the court shall hold a further hearing on the motion.




                                 29
                         DISPOSITION

      The judgment is reversed. We direct the trial court to
vacate the order denying Tourville’s motion for mental health
diversion and to enter a new order granting the motion unless
there is evidence of changed circumstances that provide a basis
for denying the motion consistent with this opinion. If the court
finds changed circumstances, it shall hold a further hearing on
Tourville’s motion for mental health diversion consistent with
this opinion.




                                          FEUER, J.
I concur:



            SEGAL, Acting P. J.




                                30
STONE, J., Dissenting.


       I respectfully disagree that the trial court abused its
discretion in denying defendant Vincent Tourville mental health
diversion under Penal Code section 1001.36 8 based on its
concerns for public and victim safety. Section 1001.36,
subdivision (a), gives trial courts discretion to consider a
defendant’s dangerousness beyond whether he or she is likely to
commit the most serious type of crimes (super strikes). Appellate
courts that have found to the contrary too narrowly construe the
Legislature’s stated purposes for the diversion statute and have
not accounted for the legislative history that demonstrates the
Legislature specifically intended to give trial courts this
discretion.
      Nor did the trial court abuse its discretion in determining
that, although Tourville was not a good candidate for diversion, it
would be appropriate to place him on three years of formal
probation with the same proposed treatment plan he would have
received during a two-year diversion period. Faulting courts for
granting probation after denying diversion could have the
perverse effect of leading courts to send more defendants with
mental health issues to prison instead of allowing them to be
treated in the community. Depending on the circumstances,
there is still a place for probation with mental health treatment
when a court denies diversion.




8     Undesignated code references are to the Penal Code.



                                 1
A.     The Legislature Intended for Courts To Exercise Broad
       Discretion in Deciding Whether To Grant Diversion,
       Including Determining Whether the Risk to Public or Victim
       Safety Is Too Great
       The majority holds that a trial court may deny mental
health diversion based on public or victim safety concerns only if
it determines the defendant is likely to commit a super strike,
and that it may not consider such concerns in exercising its
residual discretion. (Maj. opn., ante, at pp. 14-15.) The plain
language of section 1001.36, the Legislature’s general description
of its purpose in section 1001.35, and the legislative history on
this issue compel the conclusion that the trial court’s discretion is
not so limited.
       Subdivision (a) of section 1001.36 provides that “the court
may, in its discretion, ... grant pretrial diversion to a defendant
pursuant to this section if the defendant satisfies the eligibility
requirements for pretrial diversion set forth in subdivision (b)
and the court determines that the defendant is suitable for that
diversion under the factors set forth in subdivision (c).” (Italics
added). The majority recognizes that even if a defendant makes a
prima facie showing he or she meets all the statutory eligibility
and suitability criteria set forth in subdivisions (b) and (c), the
trial court still has discretion under subdivision (a) to deny
diversion. (Maj. opn., ante, at pp. 13-14, citing Vaughn v.
Superior Court (2024) 105 Cal.App.5th 124, 134 (Vaughn); see
People v. Gerson (2022) 80 Cal.App.5th 1067, 1080 [“Ultimately ...
diversion under section 1001.36 is discretionary, not mandatory,
even if all the requirements are met.”].) However, the majority
follows other appellate courts that have concluded residual
discretion under subdivision (a) of section 1001.36 does not allow




                                 2
for consideration of public or victim safety concerns. (Maj. opn.,
ante, at pp. 16-17.) Those courts reason that the statute
constrains courts to considering the narrow question of whether
the defendant is likely to commit a super strike, in which case the
defendant is disqualified from consideration for diversion under
section 1001.36, subdivision (c)(4). (See Gomez v. Superior Court
(2025) 113 Cal.App.5th 671, 691; Sarmiento v. Superior Court
(2024) 98 Cal.App.5th 882, 897.) But the eligibility and
suitability factors in subdivisions (b) and (c) of section 1001.36
merely set the minimum threshold that a defendant must satisfy
to be considered at all for diversion. If the court determines a
defendant is likely to commit a super-strike offense, that
defendant is barred from further consideration. On the other
hand, if the court determines a defendant is not likely to commit
a super strike, nothing in section 1001.36 hinders the court from
considering, as part of its exercise of discretion under subdivision
(a), whether there are other serious public or victim safety
concerns short of a likelihood the defendant will commit one of
the most serious crimes possible. (See Sarmiento, at p. 909 (dis.
opn. of Irion, J.) [concluding that if a defendant does not pose a
risk of committing a super strike but does pose an unreasonable
risk of committing some other violent crime, the trial court may
consider that risk in combination with other factors and exercise
its residual discretion to deny diversion].)
       Courts that have adopted a contrary conclusion have
assumed that to deny diversion based on lesser (but still serious)
public and victim safety concerns would be inconsistent with the
legislative purposes of the statute. They rely on the Legislature’s
stated purpose “to promote ... [i]ncreased diversion of individuals
with mental disorders to mitigate the individuals’ entry and




                                 3
reentry into the criminal justice system while protecting public
safety.” (§ 1001.35, subd. (a); see, e.g., Gomez v. Superior Court,
supra, 113 Cal.App.5th at p. 691.) However, in focusing only on
the intent to “increase[] diversion,” they neglect the
corresponding goal of “protecting public safety.” (§ 1001.35, subd.
(a); compare Sarmiento, supra, 98 Cal.App.5th at p. 890 with id.
at p. 909 (dis. opn. of Irion, J.).) Honoring that “ ‘[t]he
Legislature intended the mental health diversion program to
apply as broadly as possible’ ” (People v. Frahs (2020) 9 Cal.5th
618, 632) does not require disregarding its simultaneous
intention to protect public safety.
       The legislative history of the current version of section
1001.36 (i.e., the version that governs Tourville’s case)
unambiguously demonstrates the Legislature’s intention that
courts have discretion to deny diversion under section 1001.36
based on public and victim safety concerns, short of a likely super
strike. When considering 2022 amendments to section 1001.36 in
Senate Bill No. 1223 (2021-2022 Reg. Sess.), both the Assembly
and the Senate Committees on Public Safety spelled out this
intent. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206,
1218, fn. 3 [legislative committee analyses provide “direct
windows into legislative intent”].) The Senate Committee
analysis states: “The law gives discretion to courts to grant
diversion if the minimum standards are met, and,
correspondingly, refuse to grant diversion even though the
defendant meets all of the requirements: ‘There may be times,
because of the defendant’s circumstances, where the interests of
justice do not support diversion of the case. The defendant’s
criminal or mental health history may reflect a substantial risk
the defendant will commit dangerous crimes beyond the “super




                                 4
strikes” identified in section 1001.36, subdivision (b)(6) [now subd.
(c)(4)]. ... Clearly the court is not limited to excluding persons only
because of the risk of committing a “super strike” – the right to
exclude because of dangerousness goes well beyond that limited
list. In short, the court may consider any factor relevant to
whether the defendant is suitable for diversion.’ (J. Couzens,
Memorandum RE: Mental Health Diversion (Penal Code
§§ 1001.35-1001.36) (AB 1810 & SB 215) [revised] (Nov. 14,
2018), p. 4 ....)” (Sen. Com. on Public Safety, Rep. on Sen. Bill No.
1223, as amended Mar. 9, 2022, p. 7, first set of italics added.)
The subsequent report by the Assembly Committee on Public
Safety repeated these statements, including the quotation from
Judge Couzens’s analysis. (Assem. Com. on Public Safety, Rep.
on Sen. Bill No. 1223, as amended June 23, 2022, p. 5.) Both the
Assembly and Senate Committees thus agreed with Judge
Couzens that section 1001.36 grants trial courts broad discretion,
including to deny diversion when the court perceives an
unreasonable risk the defendant will commit dangerous crimes
other than super strikes.
       The majority concludes the Senate and Assembly
Committees’ analyses in 2022 do not persuasively show the
Legislature’s intent in 2018 when it enacted the original mental
health diversion statute. 9 (Maj. opn., ante, at pp. 21-22.) But

9      In fact, earlier legislative history reveals that all along the
Legislature intended to give trial courts discretion to consider
public safety concerns in exercising their discretion whether to
grant mental health diversion. (See Assem. Com. on Public
Safety, Rep. on Sen. Bill No. 215 (2017-2018 Reg. Sess.) as
amended Jan. 25, 2018, p. 7 [“Under the provisions of this bill, it
is permissive for a judge to grant diversion when the conditions
set forth in this bill exist. The permissive nature of this bill



                                   5
this legislative history illuminates the Legislature’s intent in
2022 as it amended the provision addressing courts’ residual
discretion—a hot issue as Senate Bill No. 1223 evolved. Because
one of the bill’s proposed amendments to section 1001.36 created
a rebuttable presumption that a defendant’s mental disorder was
a significant factor in the commission of the offense, stakeholders
were concerned that trial court discretion to deny diversion would
be curtailed. (See, e.g., Sen. Becker, author of Sen. Bill No. 1223,
mem. in response to opposition letter of Cal. Dist. Atty. Assn.,
Apr. 30, 2022, p. 1.) Thus, the Legislature proposed another
amendment to underscore that courts would retain their
discretion under subdivision (a) of section 1001.36 to deny
diversion, despite the rebuttable presumption that was created.
(See Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill
No. 1223, as amended June 29, 2022, p. 1 [emphasizing the bill
“ ‘preserves judicial discretion’ ”].) The final result was that
while the previous version of section 1001.36, subdivision (a),
specified a court “may” grant diversion, the revised version
effective 2023 states a court “may, in its discretion,” grant
diversion. (Sen. Bill No. 1223, supra, as amended June 29, 2022,
italics added; see Assem. Com. on Appropriations, Analysis of
Sen. Bill No. 1223, as amended June 29, 2022, p. 3.) 10 The

would provide judges the discretion to admit or deny a defendant
with specified mental health issues to the diversion program. If a
judge feels that a defendant’s participation in a diversion program
is not appropriate from the standpoint of public safety, or any
other reason, the judge can prohibit the defendant from
participating in diversion.” (Italics added)]; see Vaughn, supra,
105 Cal.App.5th at p. 134 [citing same].)
10     “It stands to reason ... that the simultaneous addition of ‘in
its discretion’ [in the 2022 amendments to section 1001.36]



                                  6
legislative history of Senate Bill No. 1223 as a whole reflects that,
in amending section 1001.36 to state that a court “may, in its
discretion, ... grant pretrial diversion,” the Legislature intended
that discretion to include the authority to deny diversion because
the court deems the defendant too much of a public or victim
safety risk, even if the court does not conclude the defendant is
likely to commit a super strike. (Sen. Bill No. 1223, supra, as
amended June 29, 2022.)
       Tourville’s dangerousness was the overarching concern for
the trial court in denying diversion. The court noted Tourville’s
prior domestic violence history with another partner, including
an arrest for domestic assault in 2015 and restraining order
violations in 2019. 11 The court concluded, “He’s got a history of
violence, whether or not he was actually convicted of it. ... The
fact is that his child was born on February 18th ... [and] on
February 22nd, he slaps victim in the face, threw her to the
ground, kicks her in the vagina, and then strangles her. ... Where
I’m stuck is that the crime may not be suitable for diversion.”
       Given Tourville’s domestic violence history and the facts of
the offense, the court could find diversion was inappropriate

alongside the new presumptions was meant to balance out those
presumptions by giving the courts greater discretion (albeit a
power rooted in notions of justice and equity ...) over the decision
to grant or deny diversion.” (Couzens, Bigelow & Prickett,
Sentencing California Crimes (The Rutter Group 2025 ed.)
§ 7:21.)
11   That previous partner informed the police that Tourville
assaulted her in her home and destroyed her clothing when he
came to visit their infant, and she reported several instances of
Tourville violating the restraining order, including an instance
where he was demanding to see their child.



                                 7
because of safety concerns for the victim and her infant child (and
others), even if the court did not believe Tourville would try to
murder them or commit another disqualifying super strike.
Curtailing the exercise of such residual discretion is not
consistent with the language of section 1001.36, its stated
purposes, or the Legislature’s intent evidenced by the legislative
history. (See Vaughn, supra, 105 Cal.App.5th at p. 135 [exercise
of residual discretion must be “ ‘ “consistent with the principles
and purpose” ’ ” of § 1001.36].)

B.     The Court’s Decision To Deny Diversion But Grant
       Probation Was Not Inconsistent
       The majority also concludes it was improper for the trial
court to deny diversion but to offer the Tourville formal
probation, during which he would receive the same treatment
proposed for diversion. (Maj. opn., ante, at p. 2.) I disagree that
doing so was at odds with the purposes of the diversion statute.
The court did not abuse its discretion in determining that for
Tourville to be treated in the community, public and victim safety
concerns called for the additional safeguards and lengthier period
of supervision that being on probation would provide.
       The trial court explained why diversion was not
appropriate for Tourville but probation was: “I don’t think that
two years [on diversion], given his history, given the facts of this
case, given his diagnosis, is a suitable time frame for the court to
protect the public and protect the alleged victim.” On the other
hand, the court stated, “If I put him in treatment on probation,
I’ve got the treatment team, [a Veterans Affairs social worker,]
and the treatment team at the [Department of Mental Health],
[as] well as the probation officer that is overseeing this.” Thus,
while the court agreed treatment in the community was



                                 8
appropriate, it determined Tourville needed the additional
supervision the Probation Department could provide, and it
believed the mandatory three-year probation period of
supervision 12 (as opposed to the two-year maximum diversion
period under section 1001.36, subdivision (f)(1)(C)(i)) was
necessary given Tourville’s history, his diagnosis, and the
circumstances of the offense. When the court placed Tourville on
three years of formal probation, it imposed (among other
conditions) search and seizure conditions; a firearms prohibition;
and drug testing as directed by the Probation Department,
Veterans Affairs, the court, or a law enforcement officer. 13 The
court’s reasoning and this disposition of Tourville’s case did not
run afoul of any purpose or principle of the diversion statute.
       “[T]he ‘strong legislative preference for treatment of mental
health disorders because of the benefits of such treatment to both
the offending individual and the community’ should inform a trial


12    Conviction of a domestic violence-related crime like the one
with which Tourville was charged is subject to special terms of
probation, including a three-year minimum probation period.
(§ 1203.097, subd. (a)(1).)
13     The court found Tourville was a military veteran who was
suffering from post-traumatic stress disorder and substance
abuse stemming from his service and thus qualified for the
special ameliorative provisions of section 1170.9. As a result, if
Tourville completed his mental health treatment and was in
substantial compliance with his probation conditions, he could be
considered for early termination of probation as well as the
“dismissal of the action” that would release him from “all
penalties and disabilities resulting from the offense,” subject to
some limited exceptions. (§ 1170.9, subd. (h)(1), (2)(C), (3)(A),
(4)(A).)



                                 9
court’s discretion” in deciding whether to grant mental health
diversion. (Vaughn, supra, 105 Cal.App.5th at p. 138.) Courts
must apply the Legislature’s mandate to grant diversion to as
many qualifying individuals as they can, consistent with the
purposes of the statute. Because Tourville had never before
received treatment for his post-traumatic stress disorder and
appeared committed to addressing his longstanding mental
health and substance abuse issues, the trial court appropriately
found Tourville should be treated in the community. However,
there is still a place for probation with mental health treatment
when a court finds diversion is not appropriate based on public
safety concerns. Because Tourville had engaged in a pattern of
domestic violence involving multiple partners and past
restraining order violations, culminating in a very violent
episode, the court did not abuse its discretion in determining he
required the additional protections and the extra year of
supervision that being placed on probation would afford.
       I do not think we should signal to trial courts that the only
two options available to a defendant seeking diversion are
diversion or prison time—not probation. Nor do we want to
discourage prosecutors from recommending probation for
particular defendants as opposed to prison, even if they opposed
diversion. Doing so could lead to more defendants with mental
illness in prison, not more receiving treatment in the community.
       The majority relies on the recent decision in People v.
Cabalar (2025) 117 Cal.App.5th 41, which held that a trial court
may not deny diversion based on the court’s perceived lack of
ability to monitor a defendant on diversion, because the diversion
statute requires that “[t]he provider of the mental health
treatment program in which the defendant has been placed shall




                                10
provide regular reports to the court, the defense, and the
prosecutor on the defendant’s progress in treatment.” (§ 1001.36,
subd. (f)(1)(B); see Cabalar, at pp. 58-59.) But the requirement of
reports from programs does not ensure the same supervision and
accountability that the Probation Department can provide. For
example, although section 1001.36 does not set any minimum
frequency for updates, trial courts (in Los Angeles County at
least) typically set progress hearings every three months for
defendants on mental health diversion. These defendants
generally request progress letters from their programs to bring to
progress hearings. But when defendants leave their programs
prematurely and do not show up for hearings, courts are often in
the dark about their status. Not infrequently, courts will
belatedly learn that defendants left their programs months
earlier. While some programs may notify courts directly about
defendants’ progress or advise that they have left, that is not
statutorily required and is not the norm.
       Although defendants on probation also sometimes go
“AWOL,” the Probation Department’s monthly check-in
requirement enables an earlier discovery of their absence. The
Probation Department can notify the court and ask for bench
warrants to issue for these defendants. In addition to the
monthly check-ins, defendants on probation are typically (as
here) subject to search and seizure conditions and additional
alcohol and narcotics testing. Trial courts should be able to
consider whether these additional safeguards are necessary,
including to protect public or victim safety.
       I acknowledge a court will have some public safety concerns
in most criminal cases in which a defendant seeks diversion. A
court cannot lawfully deny diversion in every case under the




                                11
rationale that probation will provide extra guardrails to protect
the public and victims. But we should trust bench officers to
exercise their residual discretion consistently with the
Legislature’s intent that the mental health diversion statute
apply as broadly as possible and to deny diversion only “where
the purposes of the statute would not be achieved.” (Vaughn,
supra, 105 Cal.App.5th at p. 138.)
      I respectfully dissent.




                                          STONE, J.




                                12