Judge Erred in Favoring Probation Over Diversion Program

Wednesday, May 6, 2026

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Court of Appeal:

Judge Erred in Favoring Probation Over Diversion Program

Opinion Says Abuse of Discretion to Offer Opportunity to Complete Program Upon Plea to Charge After Denying Chance to Undergo Same Treatment in Lieu of Sanctions Based on Non-Statutory Factors, Drawing Dissent

By Kimber Cooley, associate editor

A divided Div. Seven of this district’s Court of Appeal held yesterday that a trial judge erred in denying mental health diversion—a process by which certain parties may avoid records of conviction and criminal penalties by completing a therapeutic program—to a defendant, who was found eligible and suitable for the relief, then offering the accused the same treatment protocol as a condition of probation if he pled no contest to the charged offense.

Faulting the jurist for considering public safety factors not listed in the governing statute, the court declared that the order was beyond the scope of the “residual discretion” afforded to judges in deciding whether to grant diversion.

Justice Gail Ruderman Feuer authored yesterday’s decision, saying:

“Where, as here, the trial court finds the defendant eligible and suitable for diversion…, 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.”

Acting Presiding Justice John L. Segal joined in the opinion, and Justice Natalie P. Stone dissented, accusing the majority of “too narrowly” construing the Legislature’s purposes in enacting the alternative to traditional criminal sanctions.

Diversion Statute

At issue is Penal Code §1001.36, which provides:

“On an accusatory pleading alleging the commission of [an eligible] misdemeanor or felony offense…, the court may, in its discretion,…grant pretrial diversion to a defendant…if the defendant satisfies the eligibility requirements…and the court determines that the defendant is suitable….”

A defendant is eligible for the relief if he suffers from a mental disorder that “was a significant factor in the commission of the charged offense.” He is deemed suitable so long as a mental health professional certifies that his illness would respond to treatment, and he consents to the diversion path, agrees to waive speedy trial rights, and “will not pose an unreasonable risk of danger to public safety,” as defined in Penal Code §1170.18(c).

That section defines the phrase as “an unreasonable risk that the petitioner will commit” a new so-called “super-strike” violent offense, such as murder, assault with a machine gun on a police officer, and other particularly serious crimes like sexual offenses against minors under the age of 14.

Sec. 1001.36 further limits “[t]he period during which criminal proceedings…may be diverted” to a maximum of two years.

Scope of Discretion

The question as to the scope of a trial judge’s residual discretion to deny diversion arose after Vincent Tourville, a military veteran, requested relief under §1001.36 after he was charged with assaulting his wife in February 2024, four days after she gave birth to the couple’s child. His spouse told police that Tourville threw her to the ground, kicked her, and attempted to strangle her.

Tourville asserted that he suffered from post-traumatic stress disorder, as well as related alcohol abuse problems, and requested that the court allow him to seek treatment at a residential rehabilitation program offered by the U.S. Department of Veterans Affairs in lieu of criminal sanctions.

On April 11, 2024, Los Angeles Superior Court Judge Marcelita V. Haynes denied the defendant’s diversion request based on the violent nature of the charges and concerns that the court was ill-equipped to stand in for the probation officer in policing the suspect’s progress.

Haynes said that “[t]he nature of kicking someone four days after the birth of their child…is, I don’t think, suitable for diversion” and commented:

“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…[as] well as the probation officer that is overseeing this.”

After she added that she did not think that two years was sufficient for treatment, she remarked that “I’m offering him…time served and treatment through [the Veterans Affairs program] and probation.” He pled no contest to a felony violation of Penal Code §273.5(a), and then timely appealed.

Residual Authority

Feuer acknowledged that the use of the term “may” in the governing law operates to give the trial court “residual discretion” to deny diversion even if the statutory requirements are met. However, she said: “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 the statute].”

She continued:

“To the extent the trial court was exercising its residual discretion to deny diversion based on the violent nature of Tourville’s abuse of [his wife] and his history of domestic violence to protect [the victim] 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.”

Citing the “consistent interpretation” of the statute by appellate courts to prohibit a trial judge from considering risks to public safety beyond whether a defendant poses an unreasonable risk of committing a “super-strike” offense, she said:

“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….That is a policy decision for the Legislature to make…, and until it does, we interpret the…statute consistent with the current language and legislative intent in enacting the statute.”

No Contest Plea

Adding that “[r]equiring 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,” she opined:

“We recognize the court’s concern that it does not ‘have time to be [Tourville’s] probation officer[]’….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.”

Rejecting the assertion by lawyers with the Attorney General’s Office that the court should conditionally reverse to allow the trial judge to “provide a more robust explanation of its decision,” she declared:

“[G]iven 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….”

Stone’s View

Saying that “I respectfully disagree that the trial court abused its discretion in denying defendant Vincent Tourville mental health diversion under Penal Code section 1001.368 based on its concerns for public and victim safety,” Stone said:

“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.”

She continued:

“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.”

The case is People v. Tourville, B338176.