Court Has Limited Role in Reviewing Diversion Rulings

Friday, March 6, 2026

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Court Has Limited Role in Reviewing Diversion Rulings—C.A.

Yegan Highlights That Judges Have Wide Discretion in Determining Whether to Allow Mental Health Treatment in Lieu of Criminal Sanctions, Writes Separately to Criticize 2025 Decision by Fourth District’s Div. Three

By a MetNews Staff Writer

Div. Six of this district’s Court of Appeal yesterday highlighted the limited role of appellate courts in reviewing a trial judge’s denial of mental health diversion to a defendant seeking to avoid criminal sanctions by seeking treatment for a diagnosed disorder that he says was a “significant factor” in his commission of the charged offense.

At issue is Penal Code §1001.36, which provides that a court may grant pretrial diversion to a defendant if that party is found eligible and suitable for the relief under the statutory scheme. For a defendant to be eligible, he must show that a diagnosed mental health disorder was “a significant factor in the commission of the charged offense.”

A defendant is suitable if a mental health expert opines that his condition is treatable, he consents to the treatment and the diversion process, and he will not pose “an unreasonable risk…to public safety as defined in Section 1170.18,” which defines the term by reference to the danger of committing a new violent, super-strike offense.

Case law has provided that the trial court retains “residual discretion” to deny diversion even if a defendant is eligible and suitable under the statutory scheme.

Discretion Not Abused

Acting Presiding Justice Kenneth Yegan authored yesterday’s opinion finding that a trial judge did not abuse her discretion in denying mental health diversion to a suspect accused of three counts of commercial burglary after finding that there was “little to no evidence” that the defendant’s many diagnoses “played any factor in the charged offenses” even though a psychologist had opined that the disorders compelled him to be a repeat thief.

The court also declared, in a decision joined in by Justices Hernaldo J. Baltodano and Tari L. Cody, that the jurist did not err in finding that the accused was not suitable for diversion based on his posing an unreasonable danger to the community due to two prior convictions for residential burglary, reasoning that, even though the offenses were not technically violent crimes, the nature of breaking into to someone’s home “may easily lead to violence.”

Yegan declared:

“The Court of Appeal does not sit as ‘trier of fact’ when reviewing a trial court’s ruling either granting or denying a motion for mental health diversion. It does not substitute its discretion for that of the trial court.”

Residual Discretion

He also wrote separately to criticize last year’s opinion by Div. Three of the Fourth District Court of Appeal in People v. Cabalar, in which that court determined that a judge’s so-called “residual discretion” in denying mental health diversion “must be exercised…consistent with the…purposes” behind the law, which strongly favors the relief. In an opinion written by Acting Presiding Justice Thomas A. Delaney, that court declared:

“Although…a grant of diversion is discretionary even if a defendant meets all eligibility and suitability criteria specified in the statute, we reaffirm what other appellate courts have made clear: a court’s discretion must be exercised in a manner consistent with the…purposes of the legislation, which includes having mental health diversion apply as broadly as possible. Because the court in this case based its denial of diversion on findings unsupported by substantial evidence, matters inconsistent with legislative policy and purpose, and a misunderstanding…of the…program, we conclude the denial of diversion was an abuse of discretion.”

In his concurring opinion, Yegan remarked that “[t]he Penal Code has not been superseded by the mental health diversion statute” and opined:

“If [the Cabalar decision] is correct, appellant herein would have a much stronger argument for diversion from criminal proceedings. Both Cabalar and [the defendant] suffer from mental illness. So do a vast majority of people in state prison and county jail. But mental illness, standing alone, does not inexorably lead to mental health treatment in lieu of the burdens of the criminal adjudication process.”

Commercial Burglary Charges

In 2024, Ryan Nelson pled guilty to three counts of commercial burglary, among other offenses, and admitted suffering two prior strike convictions after he was denied mental health diversion by Santa Barbara Superior Court Judge Von Deroian. After he was sentenced to 12 years in prison, he challenged the denial on appeal.

His request for diversion was accompanied by a psychologist’s report indicating that he “has been diagnosed with major neurocognitive disorder due to traumatic brain injury, major depressive disorder, post-traumatic stress disorder, ADHD, [and] opioid-use disorder in early remission” and that the conditions compelled his criminal activity.

Yegan opined:

“Here, after considering the evidence, including the psychologist/neuropsychologist’s report, the trial court factually found that appellant’s mental health was not a significant factor in the charged offenses. Indeed, the trial court said it found ‘little to no evidence’ that appellant’s mental health diagnoses played ‘any factor’ in the charged offenses, much less a ‘significant factor.’ The trial court’s comments amount to an ‘adverse factual finding.’ ”

He continued:

“ ‘Where, as here, an appeal is premised upon facts expressly not credited by the trial court, i.e., an adverse factual finding, the appeal is frivolous….’….We need not decide if the appeal is ‘frivolous.’ But we do decide that appellant’s contentions are without merit.”

The court declared that “the trial court properly denied appellant’s request for mental health diversion” in the pretrial proceedings.

Concurring Opinion

Saying in his concurring opinion that “Calabar is wrong,” Yegan asserted:

“I disagree with its result and rationale. It does not seem to follow traditional and time-honored rules on appeal. In fact, it seems to retry the facts, and seems to ignore the doctrine of implied findings….It also seems to draw inferences away from the order under review. It then substitutes its discretion for that of the trial court and eviscerates the concept of ‘residual discretion.’ ”

The jurist added:

“Cabalar is a convicted felon. His possession of a firearm and ammunition makes it difficult to imagine that he does not pose a risk of danger to public safety. And his participation in an uncharged conspiracy to commit grand theft of $175,000 worth of jewelry from a department store jewelry case in a ‘smash and grab,’ hardly inspires a finding that he is not a risk to the public’s safety. These two observations support the trial court’s exercise of ‘residual discretion.’ ”

Noting a “pragmatic factual flaw” in the “overall scheme of Calabar’s treatment, he pointed out:

“No matter how well-intentioned the appellate court, its decision to afford mental health diversion in Orange County, cannot control whether or not he will be incarcerated in three separate probation cases in three separate counties.”

The case is People v. Nelson, 2026 S.O.S. 588.