Tuesday, June 16, 2026
Page 3
Court of Appeal:
Relapse May Be Relevant to Mental-Health Diversion Analysis
Opinion Rejects Assertion That Law Precludes Consideration of Past Effectiveness of Treatment if Therapy Proposed in Lieu of Criminal Sanctions Is Same Protocol
By a MetNews Staff Writer
The Third District Court of Appeal has held that a suspect’s history of relapsing after attending a residential drug-and-alcohol treatment program may be considered in deciding whether to grant him diversion on the condition that he receive rehabilitation services by the same provider under a law designed to give certain defendants with “mental disorders” the opportunity to seek help in lieu of facing criminal sanctions.
Rejecting the view that a trial judge erred in denying relief based on past behavior because adequacy of the proposed course of treatment is not one of the listed criteria for “suitability” under the statute, the court, in a decision filed on May 22 and certified for publication on Friday, opined that the factor may be relevant to the overarching consideration of whether the recommended program is likely to meet the party’s “specialized mental health” needs.
At issue is Penal Code §1001.36, which authorizes pretrial diversion for defendants with qualifying mental health disorders if the party’s condition “was a significant factor in the commission of the…offense” and the crimes charged do not include murder, manslaughter, rape, or other serious violations.
In addition to the eligibility criteria, a court is directed to “consider whether the defendant is suitable” under a set of enumerated factors, including amenability of the disorder to treatment, the defendant’s assent to the specific suggested remedial actions, and whether he will “pose an unreasonable risk of danger…if treated in the community.”
Justice Ronald B. Robie, writing for the court, acknowledged that “the suitability requirements do not include adequacy of the proposed treatment” but pointed to subdivision (f), which specifies that “[p]retrial diversion” means “the postponement of prosecution…to allow the defendant to undergo…treatment, subject to” the court being satisfied “that the recommended…program…will meet the specialized…needs of the defendant.”
Threatening Conduct
Appealing the denial of a request for diversion under §1001.36 was Joseph Russo, who was accused of threatening to burn his mother’s house to the ground if she called the police following a February 2024 incident in which he punched his dog approximately 20 times, called it racial slurs, and began to drag the animal down the street.
Prosecutors charged Russo, who allegedly had a prior strike conviction from 2013 for residential burglary, with dissuading a witness by force or threat, animal cruelty, and possession of drug paraphernalia. In May 2024, he petitioned for mental-health diversion based on purported bipolar and methamphetamine-use disorders.
He attached an acceptance letter from a residential program that advertises that it “provides help to adults struggling with…life-controlling issues such as drugs and alcohol” and boasts that it “teaches people how to discipline their lives spiritually, emotionally, and physically and become productive citizens.”
Russo’s attorney acknowledged that he had previously attended the program in 2020 but “hop[ed] to have a better exit strategy” this time around. Attorneys with the Siskiyou County District Attorney’s Office opposed the request, arguing that the defendant was aware of his mental health struggles and had “failed to maintain ongoing care to curb his criminality.”
Siskiyou Superior Court Judge John Lawrence denied the defendant’s request in January of last year, commenting that “[e]ven though [he] may very likely qualify [for mental health diversion], he’s certainly not a suitable candidate” and remarking that “the past portends the future.” The following month, Russo pled no contest to dissuading a witness and admitted the prior strike allegation.
Lawrence sentenced him to eight years in prison on March 18, 2025.
Suitability Analysis
Saying that “[t]he trial court’s reasoning…did not reflect consideration of the criteria for determining suitability” and instead “focused on the adequacy of defendant’s proposed treatment,” Robie wrote:
“[T]he suitability requirements do not include adequacy of the proposed treatment….Whether the defendant will ‘pose an unreasonable risk of danger to public safety…’ is one suitability factor….But the trial court’s brief reference to ‘concerns of public safety’ was overshadowed by its analysis of defendant’s treatment history as the reason for the trial court denying his request for diversion.”
However, he reasoned:
“The trial court’s analysis…mirrored the analysis under section 1001.36, subdivision (f)….As mentioned, this looks at whether the trial court is overall ‘satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.’…The trial court’s analysis above establishes it was not satisfied the outpatient treatment program would meet defendant’s needs and may have conflated that analysis with the suitability analysis.”
Abuse of Discretion
Remarking that “[w]ith this understanding of the trial court’s analysis, we find no abuse of discretion,” he distinguished the 2024 decision by the Fourth District’s Div. One in Sarmiento v. Superior Court, in which the court concluded that relapses following drug treatment programs were not sufficient to predict a defendant’s response to mental health therapies for purposes of §1001.36(f). Robie said:
“Defendant’s central contention for error is that the trial court cannot consider previous treatment performance in assessing the adequacy of the proposed treatment….We disagree. The court in Sarmiento acknowledged a trial court analyzing its discretion under section 1001.36, subdivision (f)(1)(A)(i) ‘might reject diversion if it concluded that the proposed treatment services did not target or could not effectively address the defendant’s particular diagnosis.’…But this was not satisfied in Sarmiento because the defendant’s proposed treatment for underlying mental health diagnoses, coupled with substance abuse treatment, differed from prior failed drug treatment.”
The jurist added:
“Defendant does not explain how returning to [the] program would be different from his previous experience completing the same program. Defendant also failed to offer a ‘better exit strategy,’ despite acknowledging the need for one. Absent such evidence, the trial court finding defendant’s return to [the] program would not meet defendant’s specialized mental health treatment needs because it failed to do so in the past—’[t]he past portends the future’— was not arbitrary or capricious.”
Acting Presiding Justice Harry E. Hull Jr. and retired Justice Rebecca A. Wiseman, sitting by assignment, joined in the decision.
The case is People v. Russo, 2026 S.O.S. 1736.
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