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Courts Cannot Deny Mental Health Diversion Simply Because Another Factor “Played a Bigger Role”

Los Angeles Criminal Defense

A new published opinion from the Fourth Appellate District reaffirms how broadly Penal Code § 1001.36 was intended to apply — and reins in trial courts that use residual discretion to go beyond the statute.

A Riverside trial court denied Adam Flareau’s motion for mental health diversion after finding that, while his diagnosed mood and anxiety disorders did contribute to his confrontation with his sister, his fear of being outed to his conservative parents was the more dominant factor. The Fourth District Court of Appeal reversed — and the decision matters for every practitioner filing a § 1001.36 motion in Los Angeles and Southern California.

What Happened

Flareau was charged with assault with a semiautomatic firearm, criminal threats, assault with a taser, and misdemeanor battery following a domestic dispute. He sought pretrial mental health diversion under § 1001.36, supported by two expert reports. Both his treating psychiatrist and a forensic psychologist agreed that his disorders — which included major depressive disorder, panic disorder with agoraphobia, and OCD — were significant contributing factors to the incident, and that he would benefit from psychotherapy he had never received.

The trial court acknowledged the nexus between the diagnoses and the conduct but denied diversion, reasoning that the incident was primarily driven by situational stress (his sister’s threats to out him) rather than his mental illness. Because he had been in psychiatric treatment for years without prior criminal incidents, the court concluded he didn’t fall within “the spirit” of § 1001.36.

“Nothing in section 1001.36 suggests that an otherwise qualifying defendant can be denied diversion under the court’s residual discretion if something else was more of a motivating, causal, or contributing factor.”— Court of Appeal, Fourth Appellate District, Div. Two

The Court of Appeal’s Reasoning

The appellate court identified three flaws in the trial court’s analysis. First, the statute only requires that the qualifying mental disorder be a motivating, causal, or contributing factor — not the dominant one. Demanding that it outweigh everything else imposes a threshold the Legislature never wrote.

Second, denying diversion because a defendant had received partial treatment (medication only, no therapy) cuts directly against the program’s purpose of getting defendants the full mental health care they need. The experts both identified an untreated component — psychotherapy — that could benefit Flareau and the community. That’s exactly what the statute is designed to address.

Third, the trial court’s residual-discretion ruling never explained why diversion would fail to achieve the statutory goals. That explanation is required. Residual discretion exists to serve the program’s purposes, not to supplement them with the court’s own policy preferences.

Practical Takeaways for Defense Counsel

• The “contributing factor” standard in § 1001.36(b)(2) is deliberately broad — co-existing situational stressors do not disqualify your client.
• When the People argue your client’s behavior was “really” about something else, this opinion is your answer: the statute does not require mental illness to be the dominant cause.
• Document all treatment gaps, not just current diagnoses. Untreated modalities (e.g., therapy vs. medication-only) strengthen the argument that diversion will add value.
• If the court invokes residual discretion to deny, demand specific findings on why diversion would not meet § 1001.35’s goals. A bare rationale is a reversible error.
• Prior compliance with treatment is not a disqualifier. The court’s logic here — “he was already in treatment, so mental illness wasn’t the real cause” — was rejected outright.

What This Means in Los Angeles

Los Angeles courts handle a significant volume of § 1001.36 motions, and the pressure to deny diversion in cases involving weapons or family violence is real. Flareau is now a published opinion that defense attorneys can cite to push back when a trial court strays from the statutory framework. The Legislature’s intent, as the court reaffirms, is for mental health diversion to apply as broadly as possible when the requirements are met. Residual discretion is a narrow tool — not a license to second-guess the Legislature’s policy choices.

For clients facing charges where mental health played any role, this decision opens the door wider. If you have a client who has been denied diversion or whose motion is pending, Flareau is essential reading.

This post is for informational purposes and does not constitute legal advice. The outcome of any diversion motion depends on the specific facts, the assigned court, and effective advocacy. If you have questions about mental health diversion for a pending case, consult with an experienced Los Angeles criminal defense attorney.

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