Friday, January 2, 2026
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Court of Appeal:
Proposition 36 Doesn’t Bar Pretrial Mental Health Diversion
By a MetNews Staff Writer
The First District Court of Appeal has rejected the position of the Office of Attorney General that a 2024 voter-enacted measure cracking down on possessors of hard drugs with two or more priors are ineligible for pre-trial mental health diversion.
At issue in a writ proceeding, decided Tuesday, is whether Proposition 36, “The Homelessness, Drug Addiction, and Theft Reduction Act”—codified at Health & Safety Code §11395—precludes a judge from ordering diversion pursuant to Penal Code §1001.36, as urged by the People.
Under §1001.36, enacted in in 2018, a judge may suspend criminal proceedings in cases where the defendant has a mental health problem and dismiss the charges if a treatment program is successfully completed.
While that section provides for treatment during a period of pre-trial diversion, §11395 deals with a program of treatment following a conviction.
Sec. 11395
Sec. 11395(b)(1) says that “[n]otwithstanding any other law,” incarceration is required for possessors of unprescribed hard drugs, but subd. (b)(2) specifies that “[a] person shall not be sentenced to jail or prison pursuant to this section unless a court determines that the person is not eligible or suitable for treatment….” Subd. (d)(1)(A) provides:
“In lieu of a jail or prison sentence, or a grant of probation with jail as a condition of probation, a defendant charged with a violation of this section may elect treatment by pleading guilty or no contest to a violation of this section and admitting the alleged prior convictions, waiving time for sentencing and the pronouncement of judgment, and agreeing to participate in, and complete, a detailed treatment program developed by a drug addiction expert and approved by the court.”
Under §11385(d)(3), where the treatment program is successfully completed, “the court shall dismiss this charge against the defendant and the provisions of Section 1000.4 of the Penal Code, as it read on the effective date of this section, shall apply.”
‘Barred by Law’
Solano Superior Court Judge William J. Pendergast III ruled in two cases in which the defendant was Beau Reed that diversion is “barred by law” where a defendant is charged under §11385. He noted that the section includes reference to treatment for violators, saying that the provision would be “surplusage” if pretrial diversion under §1001.36 were contemplated.
In response to Reed’s writ petition, the Office of Attorney General argued that in light of the words, “[n]otwithstanding any other law,” §11385 “unambiguously makes its treatment path exclusive, foreclosing mental health diversion under Penal Code section 1001.36 for a treatment-mandated felony.” Reed countered that the four words relied upon by the People relate only to the subdivision in which they are contained, (b)(1), and not to the treatment subdivision, (d).
Presiding Justice Tracie L. Brown of Div. Four authored the opinion granting a writ of mandate directing the trial court to vacate its order denying diversion and to exercise its discretion, on remand, in ruling on the motion.
Brown’s Reasoning
Brown pointed out that §11385 does not expressly rule out diversion under §1001.35 and declared:
“[A]lthough section 11395(b)(l)’s use of the phrase ‘[n]otwithstanding any other law’ declares voter ‘intent to override all contrary law’…, this language overrides only laws that conflict with that specific subdivision.”
She elaborated:
“The clause ‘[n]otwithstanding any other provision of law, and except as provided in subdivision (d), a person...who possesses a hard drug...shall be punished,’ is most naturally read as setting forth section 11395’s prescribed punishment for a defendant convicted of violating the statute—to wit, county jail for less than one year or imprisonment pursuant to Penal Code section 1170, subdivision (h) for a first conviction and county jail or prison for a second conviction. This language expresses the voters’ clear intent that section 11395(b)(1) prevail over conflicting laws that would otherwise prohibit felony punishment for drug possession.”
The presiding justice wrote that §11395 “does not, as the People contend, provide that the treatment path described in section 11395(d) is the exclusive treatment path available to a defendant charged under section 11395.”
Harmonizing Sections
Brown went on to say:
“Because pretrial mental health diversion occurs before conviction and the treatment or punishment contemplated in section 11395 occurs only after conviction, the plain text of the two statutes can, and therefore must, be read to coexist.”
She drew attention to Penal Code §1001.36(b). It renders a person charged with a drug offense eligible for pretrial mental health diversion if he or she “has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders” (“DSM”) where the “mental disorder was a significant factor in the commission of the charged offense.”
Responding to the Office of Attorney General’s contention that her one statute or the other applies to any given defendant, Brown said:
“While there will certainly be defendants charged under section 11395 who have a DSM-diagnosable substance use disorder, one can also easily imagine a situation where a defendant charged under section 11395 has two prior drug-related convictions (for possession for sale, for example) but has no diagnosable DSM substance use disorder. And treatment under section 11395 would remain an option for any defendant who has a DSM- diagnosed disorder but who does not complete pretrial mental health diversion. Because both statutes can coexist, we are bound to allow them to stand together.”
She added that ballot information materials gave no clue to voters that passage of the proposition would render pretrial diversion under §1001.36 unavailable.
The case is Reed v. Superior Court (People), A173393.
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