Discussion Section 1001.36 broadly authorizes the trial court to grant mental health diversion where a defendant meets the statute’s eligibility and suitability criteria. (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890-891.) The defendant in a criminal case is eligible for diversion if he or she has been “diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which [the defendant is] charged. [Citation.]” (Id., at p. 891; § 1001.36, subd. (b)(2).) If eligibility is established, “the court must consider whether the defendant is suitable for pretrial diversion.” (§ 1001.36, subd. (c).) “A defendant is suitable if: (1) in the opinion of a qualified mental health expert, the defendant’s mental health disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an ‘unreasonable risk of danger to public safety’ as defined in section 1170.18 if treated in the community.” (Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134 (Vaughn); § 1001.36, subd. (c)(1)-(4).) The statute narrowly defines an “unreasonable risk of danger to public safety,” by reference to the definition found in section 1170.18. (§ 1001.36, subd. (c)(4).) Section 1170.18, in turn, defines the concept as “an unreasonable risk that the

3 petitioner will commit a new violent felony within the meaning of” section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c); see People v. Williams (2021) 63 Cal.App.5th 990, 1001.) Even where the defendant meets the statute’s eligibility and suitability criteria, the trial court retains “residual discretion” to deny diversion. (§ 1001.36, subd. (a); Vaughn, supra, 105 Cal.App.5th at p. 134.) This discretion is not, however, “unfettered and must be exercised ‘“consistent with the principles and purpose of the governing law.”’” (Id. at p. 135.) We review a trial court’s ruling on a motion for mental health diversion for abuse of discretion. (Pacheco, supra, 75 Cal.App.5th at p. 213.) “A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported by substantial evidence [citation].” (People v. Moine (2021) 62 Cal.App.5th 440, 449.) It is appellant’s burden on appeal to establish an abuse of discretion occurred. (Pacheco, at p. 213.) The trial court sitting as “trier of fact,” may reject an expert’s testimony. (In re J.S., supra, 105 Cal.App.5th at p. 212; People v. McCoy (1995) 40 Cal.App.4th 778, 785 [trial court not obligated to accept even unanimous or uncontradicted expert opinion]; accord, In re Scott (2003) 29 Cal.4th 783, 823 [“The fact finder determines the facts, not the experts”]; People v. Samuel (1981) 29 Cal.3d 489, 498 [chief value of expert’s testimony rests upon the material from which it is fashioned and the reasoning by which it progresses from material to conclusion].) 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

4 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.” “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 . . . .” (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1097). We need not decide if the appeal is “frivolous.” But we do decide that appellant’s contentions are without merit. Finally, appellant contends he is not a danger to the community because he has no convictions involving “violence.” This may be true, but two of his prior theft-related offenses were for first degree residential burglary. This crime may easily lead to violence. On this record, the trial court properly denied appellant’s request for mental health diversion. Disposition The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

YEGAN, Acting P. J.

We concur:

BALTODANO, J.

CODY, J.

5 YEGAN, A.P.J., Concurring: I write a separately concurring opinion to comment upon the recent Fourth District opinion in People v. Cabalar (2025) 117 Cal.App.5th 41 (Cabalar). If it is correct, appellant herein would have a much stronger argument for diversion from criminal proceedings. Both Cabalar and Nelson 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. The Penal Code has not been superseded by the mental health diversion statute. Cabalar, supra, 117 Cal.App.5th 41 is wrong. 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. (People v. Francis (2002) 98 Cal.App.4th 873, 878.) 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.” In addition, there is a pragmatic factual flaw in the overall scheme of Cabalar’s “treatment” or punishment. 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. (Cabalar, supra, 117 Cal.App.5th at p. 46.) 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

1 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.” (Cabalar, supra, 117 Cal.App.5th at pp. 53, et seq.)

CERTIFIED FOR PUBLICATON.

YEGAN, Acting P. J.

2 Von Deroian, Judge Superior Court County of Santa Barbara _____________________________

Jennifer Peabody, Executive Director, Richard B. Lennon, Staff Attorney, 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, Julie A. Harris, Gabriel Bradley, Deputy Attorneys General, for Plaintiff and Respondent.