People v. Diaz CA2/3

Opinion

Filed 8/26/26 P. v. Diaz CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B350027

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24TRCF00195) v.

ROGELIO DIAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura Ellison, Judge. Affirmed. Jennifer Peabody and Richard B. Lennon, under appointments by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Rogelio Diaz entered a no contest plea to one count of animal cruelty and admitted using a deadly and dangerous weapon in the commission of the offense. He appeals from the denial of his petition for mental health diversion under Penal Code section 1001.36.1 The trial court found Diaz unsuitable for diversion on the ground that he would pose an unreasonable risk to public safety if treated in the community. It also was not satisfied that the proposed treatment program would meet Diaz’s specialized needs. We conclude that substantial evidence supported the trial court’s finding that Diaz was not suitable for diversion under section 1001.36, subdivision (c)(1), and the trial court did not abuse its discretion in rejecting the proposed treatment plan as inadequate. We affirm the order. FACTUAL AND PROCEDURAL BACKGROUND The Charged Crimes On April 5, 2024, Diaz killed a cat in an incident captured on surveillance video. At approximately 3:00 p.m., the cat entered the surveillance video’s frame. Diaz was across the street. He removed a pair of gloves from a backpack and put them on. He then crossed the street, picked the cat up from a driveway and moved it to a sidewalk. The cat appeared to be struggling. Diaz placed the cat on the sidewalk and forcefully punched it. The cat continued moving while Diaz briefly stepped away. He then “drop[ped] his body weight on the cat.” At 1 All undesignated statutory references are to the Penal Code.

2 3:12:40 p.m., 3:13:10 p.m., and 3:13:55 p.m., Diaz repeatedly stomped on the cat. When he stopped, the cat appeared lifeless. Diaz walked away. Diaz admitted to investigating deputies that he intentionally beat the cat, causing its death. A necropsy showed the cause of death was most likely “skull fractures and ensuing shock.” Five days later, on April 10, Diaz killed a dog. Surveillance cameras recorded the incident. Diaz and his stepdaughter passed a Chihuahua on a sidewalk. Diaz was riding a bicycle and his stepdaughter was riding in a toy car. Without any apparent provocation, Diaz kicked the dog, sending it airborne several feet until it landed on the street, motionless. Diaz and his stepdaughter continued down the sidewalk. Shortly after, Diaz returned alone. Wearing a glove, he picked the dog up from the road and placed it back on the sidewalk. Diaz left. When he returned, Diaz rode his bicycle over the dog twice, stomped on it, then ran over it again. The dog made sounds as if it were in pain. Diaz then strangled the dog with his hands until it lost consciousness. Diaz later admitted that the dog regained consciousness, so Diaz got on his bicycle and rode over it approximately three times. When the dog’s owner came home, she saw Diaz standing in front of her dog. The dog was not breathing. The owner observed “a lot” of injuries. The dog ultimately died of its injuries. Diaz later told a detective he was taking his stepdaughter to a babysitter when they encountered the dog. He kicked it because he thought it was going to bite her. After he left the 3 child with the babysitter, he returned to check on the dog. He found it “crying,” so he killed it “to put it out of its misery.”2 In May 2024, the People charged Diaz with two counts of animal cruelty for the killings of the cat (count 1) and the dog (count 2). (§ 597, subd. (a).) In a later amended information, the People alleged that as to count 2, Diaz personally used a deadly and dangerous weapon, a bicycle, in the commission of the offense. The information also added aggravating factors under California Rules of Court, rule 4.421. Petition for Mental Health Diversion In August 2025, Diaz filed a petition for mental health diversion pursuant to section 1001.36. He submitted a psychological assessment in support of the petition from Dr. Krystal Bowen. Dr. Bowen opined that Diaz had a “probable diagnosis” of: “Alcohol Use Disorder,” “Amphetamine-Type Substance Use Disorder,” and “Posttraumatic Stress Disorder.” Dr. Bowen described Diaz’s mental health history: “Mr. Diaz has a history of . . . emotions of aggression and anger . . . . By high school, the defendant struggled with managing his temper and mood instability due to suspensions in school related to physical altercations. By 11th grade, at 17 years old the defendant was prescribed psychotropic medication of Zoloft and Abilify and was in therapy.” She reported that Diaz “struggles with daily use of alcohol, Xanax, and methamphetamines. The 2 Some of the details of the crimes were recounted in the prosecution’s opposition to the petition for mental health diversion. The opposition recounted what was reflected in the surveillance videos, which were admitted into evidence at the preliminary hearing. Diaz’s counsel did not object to or dispute the People’s description of the evidence.

4 defendant began marijuana use in high school to find relief from his mental health symptoms he was experiencing, per his school records, he was mandated to participate in an NA program by 17- years-old.” Diaz attended weekly drug rehabilitation classes in high school. The report indicated that although Diaz has “an inconsistent history of mental health services, he is still likely internally and privately suffering from his internal distress . . . his mental anguish and distress is manifested in various ways, through his drug use, conduct problems, aggression and violent tendencies. He has now learned to find comfort and ‘escape’ through heavy drugs that produce severe symptoms of psychosis. Subsequently, his mood instability of anger, aggression and impulsivity is either suppressed by his drug use and/or magnified by his drug use, which has likely influenced his current alleged offense.” Regarding Diaz’s criminal history, Dr. Bowen stated: “The defendant reported history of alleged offenses and/or convictions related to assault, assault with a deadly weapon and robbery when he was a juvenile. As an adult, the defendant reported an arrest history related to domestic violence and current charge of animal cruelty. The defendant’s report of the alleged offense, ‘I have [sic] been smoking meth all that week, and on that day, I had been drinking and took a Xanax. I didn’t even know what happened, they had to tell me what I did.’ When asked how he feels about his charges now that he is sober, the defendant reported ‘I feel horrible.’ ” (Italics in original.) Despite defendant’s statements, Dr. Bowen opined: “[H]e likely feels little remorse of any lasting nature,” based on his “antisocial character features.”

5 Dr. Bowen concluded Diaz’s “future violence” risk was “high.” She also found his “serious physical harm” risk was “high.” She reported that Diaz “describes himself as someone who tends to be easily angered and may have difficulty controlling the expression of his anger.” Diaz’s “risk for aggressive behavior is further exacerbated by the presence of a number of features, such as a limited capacity for empathy, impulsivity, and a sense of persecution, which have been found to be associated with increased potential for violence.” Dr. Bowen found that Diaz’s disorders were a significant factor in the commission of the charged offenses, explaining his “polysubstance use played a role in the alleged offense as the drugs can aggravate and/or provoke symptoms of being irrational, unstable, disoriented, with manifestation of odd behaviors and a host of other symptoms that can impair judgment and reasoning.” She opined that Diaz’s “substance use can respond positively to an inpatient drug/alcohol rehabilitation treatment program.” While Diaz “appears to have [a] substantial interest in making changes in his life and he appears motivated for treatment,” “the combination of problems that he is reporting suggests that treatment is likely to be quite challenging.” In answer to the question of whether Diaz posed an unreasonable risk of danger to public safety if properly treated in the community, Dr. Bowen wrote: “No, Mr. Diaz’s participation in an inpatient rehabilitation program that addresses his substance use reduces his risk of danger to himself and public safety.” But the report then warned: “LS/CMI test measure indicates a High risk of reoffending due to risk factors of the defendant’s mental health history, substance use history, juvenile conduct problems, 6 lack of participation in organized activity[.] These risk factors if left unaddressed can statistically pose a risk of the Defendant reoffending.” (Italics in original.) Dr. Bowen’s treatment recommendation was an inpatient drug and alcohol rehabilitation program lasting “up to 6 to 9 months,” and 12 to 24 anger management classes. In opposition to the petition, the People argued Diaz was not eligible for diversion because he lacked a qualifying mental health disorder, and any mental health disorder did not play a significant role in the commission of the crimes. The opposition further contended that the proposed treatment plan was insufficient to satisfy section 1001.36 requirements. Finally, the People argued Diaz posed an unreasonable risk of danger to the public, so he was not suitable for diversion. Trial Court Ruling In September 2025, the trial court held a hearing on the petition. The prosecutor argued that although Dr. Bowen provided “suggestions,” there was no treatment program “before the court” despite a year of searching, and it was possible no treatment plan would accept Diaz due to his violent conduct. Defense counsel responded that she “believed [Diaz] was screened by the mental health program through the collaborative courts. I just don’t have that actual program lined up. I can give the court an actual treatment plan.” The court responded that it was not going to “submit this to a different court.” The court found by “clear and convincing evidence” a “strong probability, very strong, [Diaz] would reoffend and commit a super strike” and there was “not a treatment plan that is suitable for the alleged offenses . . . .” The court cited Dr. Bowen’s finding that Diaz was a “high risk” of reoffending and 7 stated it was “one of the most violent offenses . . . [the court had] read [about] in a long time.”3 The court also found that Diaz had “years” to address his substance abuse, having been previously offered treatment in high school. He was now 28 years old. The court recited facts of the charged offenses and found the evidence did not reflect someone “acting under the fit of passion of having just intoxicated themselves with Xanax or alcohol.” The trial court expressly denied the motion based on section 1001.36, subdivision (c)(4), dangerousness, and section 1001.36, subdivision (f)(1)(A)(i), lack of an appropriate treatment plan. The court also appeared to refer to one of the eligibility factors, section 1001.36, subdivision (b)(2), in denying the motion. In October 2025, Diaz pled nolo contendere to one count of animal cruelty under section 597, subdivision (a) (count 2), and admitted the use of a dangerous weapon allegation under section 12022, subdivision (b)(1). The trial court sentenced Diaz to three years in state prison, pursuant to an agreed upon disposition. Diaz timely appealed. DISCUSSION I. The Trial Court Did Not Abuse Its Discretion in Denying Mental Health Diversion A. Section 1001.36 Section 1001.36 requires a court to consider whether a defendant is eligible and suitable for mental health diversion. Under section 1001.36, subdivision (b), “[a] defendant is eligible 3 It is not clear whether the court was referring to both offenses collectively, or one incident in particular.

8 for pretrial diversion pursuant to this section if both of the following criteria are met: [¶] (1) The defendant has been diagnosed with a mental disorder . . . [¶] (2) The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” If a defendant meets the eligibility requirements in section 1001.36, subdivision (b), then the court must determine whether the defendant is suitable for diversion as set forth in section 1001.36, subdivision (c). A defendant is suitable for diversion if four criteria are met: “(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment”; “(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial”; “(3) The defendant agrees to comply with treatment as a condition of diversion”; 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.” (Id., subd. (c)(1)–(4).) “Section 1001.36’s reliance on the definition of dangerousness in section 1170.18, necessarily encompasses the list of super strike offenses found at section 667, subdivision (e)(2)(C)(iv).” (People v. Moine (2021) 62 Cal.App.5th 440, 450 (Moine).) The super strike offenses listed in section 667, subdivision (e)(2)(C)(iv) include homicide, several sexual offenses, 9 solicitation to commit murder, and any serious or violent felony offense punishable in California by life imprisonment or death, among others. (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149 (Whitmill).) The statutory definition of “pretrial diversion” indicates that the postponement of prosecution is subject to the court being “satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (f)(1)(A)(i).) Finally, “even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. [Citations.] But this ‘residual’ discretion must be exercised ‘ “consistent with the principles and purpose of the governing law.” ’ [Citations.] That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893 (Sarmiento).) “A trial court’s ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence.” (Whitmill, supra, 86 Cal.App.5th at p. 1147.) “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].” (Moine, supra, 62 Cal.App.5th at p. 449.)

10 B. Substantial evidence supported the trial court’s finding that Diaz posed an unreasonable risk of danger to public safety if treated in the community and that the proposed treatment plan was inadequate Diaz contends the trial court erred by finding he posed an unreasonable risk of danger to public safety. This suitability factor required the trial court to find that Diaz “will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.” (§ 1001.36, subd. (c)(4).) In making this determination, the court “may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.” (Ibid.) The record contains sufficient evidence to support the trial court’s finding. Dr. Bowen’s report detailed at length the high risk that Diaz would engage in future acts of violence, including acts causing serious physical harm. The report set forth a myriad of factors that increased the level of risk, only one of which was Diaz’s substance abuse. Indeed, after concluding that Diaz’s “participation in an inpatient rehabilitation program that addresses his substance use reduces his risk of danger to himself and public safety,” the report warned in italicized font: “LS/CMI test measure indicates a High risk of reoffending due to risk factors of the defendant’s mental health history, substance use history, juvenile conduct problems, lack of participation in an organized activity . . . . These risk factors if left unaddressed can statistically pose a risk of the Defendant reoffending.” Yet, the 11 proposed treatment plan included only two aspects of treatment, substance abuse treatment and general anger management classes, without any specified psychological or psychiatric component. The trial court could reasonably credit Dr. Bowen’s report indicating that treatment would be “challenging” because of the multiple factors implicated in Diaz’s mental health disorders; that Diaz had come to rely on substances as a means of self- treating the underlying mental health issues; and the report’s warnings about the high level of risk that Diaz would engage in future violence. To the extent Dr. Bowen could not propose a treatment plan that would accomplish what the report suggested was necessary—address Diaz’s substance abuse as well as the “mental anguish and distress” that had caused him to rely on substances to “escape” from those symptoms despite sporadic mental health services—the trial court could, within the bounds of reason, determine that he was unsuitable for diversion because he posed an unreasonable risk of committing a super strike if treated in the community. (See Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83 [nothing in § 1001.36 “precludes a trial court from rendering a dangerousness finding contrary to one expressed by a mental health professional . . . .”].) People v. Pacheco (2022) 75 Cal.App.5th 207 (Pacheco), is instructive. The Court of Appeal affirmed the denial of diversion on the basis that the defendant posed an unreasonable risk of danger to public safety. The defendant deliberately set fire to brush near a homeless encampment and ranch. (Id. at pp. 209– 210.) A psychologist diagnosed the defendant with schizophrenia and stimulant use disorder. (Id. at p. 210.) The psychologist opined that if the defendant met “certain conditions,” he “ ‘will 12 not pose an unreasonable risk of danger to public safety if treated in the community.’ ” (Ibid.) The defendant had not previously committed arson and the act seemed “ ‘very atypical and uncharacteristic of him. His act of arson w[as] likely due to being psychotic and delusional at the time. He is willing to take antipsychotic medications which control these symptoms. If he remains compliant with taking this medication regimen, and does not use any methamphetamine, then he would be unlikely to reoffend. . . . However, if he does not take his antipsychotic medication as prescribed and/or returns to using methamphetamine, then he would become unstable and psychotic and be likely to reoffend in some bizarre manner.’ ” (Id. at pp. 210–211.) There is no indication that the defendant had any violent criminal history; the opinion notes he had prior arrests for drug use only. (Id. at p. 214.) In affirming the denial of mental health diversion, the Court of Appeal cited the psychologist’s finding that if the defendant did not take his medication or returned to using methamphetamine, he was likely to reoffend. (Pacheco, supra, 75 Cal.App.5th at p. 214.) The court noted defendant had a “14-year history of chronic methamphetamine abuse,” thus “his resolve to stop using the drug is dubious.” (Ibid.) Here, Dr. Bowen opined that Diaz would not pose an unreasonable risk of danger to public safety if treated in the community. However, she also found Diaz at “high risk” of reoffending and, as the court in Pacheco implicitly found, she explicitly concluded treatment would be “quite challenging” because of the combination of factors contributing to his “problematic behaviors.” As in Pacheco, the trial court did not abuse its discretion in considering the psychologist’s finding that 13 Diaz would pose a danger to the community based on the likelihood of reoffending if treatment was not successful. Diaz relies on two cases in which the courts found the record did not support a finding of dangerousness. Neither is persuasive here. In People v. Hoffman (2015) 241 Cal.App.4th 1304, 1308, the court was concerned with resentencing under Proposition 47, which reclassified “certain drug- and theft-related offenses from felonies or wobblers to misdemeanors.” The court concluded the defendant, a heroin addict with borderline personality disorder who stole checks from her parents and had no prior criminal history, was not an unreasonable risk of danger to public safety. (Id. at pp. 1307–1311.) In People v. Williams (2021) 63 Cal.App.5th 990, 993, the defendant engaged in “extremely vicious and threatening harassment” of a business’s owners “daily for two years” until his arrest. He also harassed a neighbor. (Ibid.) The Court of Appeal found that while the defendant had made violent threats, “he poses a low risk to public safety in the uncontroverted opinion of two mental health professionals,” had been “released on bond for more than two years without incident,” and had no prior criminal record. (Id. at p. 1003.) Unlike the defendants in Hoffman and Williams, Diaz had recently committed very violent acts. His conduct, while not directed at a person, went far beyond vicious threats. While a mental health professional opined that he did not pose an unreasonable risk to public safety if treated in the community, she also found that treatment would be difficult and that, without treatment, he was at “high” risk of engaging in physical violence.

14 The trial court did not abuse its discretion in concluding that the evidence established Diaz was not suitable for diversion based on his unreasonable risk of danger to public safety. Moreover, even if Diaz was eligible and suitable, the trial court could reasonably reject diversion because it was not “satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (f)(1)(A)(i).) “The focus of this provision is on the program of treatment, providing reasonable assurance that it will address the defendant’s particular mental health needs. Under this provision, a court might reject diversion if it concluded that the proposed treatment services did not target or could not effectively address the defendant’s particular diagnosis.” (Sarmiento, supra, 98 Cal.App.5th at p. 895.) As noted above, Dr. Bowen’s report diagnosed Diaz with post-traumatic stress disorder; described his longstanding mental anguish and distress; noted his limited capacity for empathy, impulsivity, and sense of persecution; and suggested that his substance use may have suppressed his “mood instability of anger, aggression and impulsivity.” Despite identifying these underlying conditions and connecting them to Diaz’s high risk of reoffending and engaging in future violence, the recommended treatment plan proposed only substance abuse treatment and anger management classes. The report did not provide further details. (Cf. Whitmill, supra, 86 Cal.App.5th at p. 1145 [doctor’s report provided “a detailed treatment plan for appellant, including antidepressant medication, psychological therapy, substance abuse treatment, and intensive inpatient mental health services” and “recommended a ‘dual-diagnosis treatment 15 program that addressed both his psychiatric disorder and his substance abuse disorder’ ”].) “Finding the treatment would not meet defendant’s specialized health treatment needs is an appropriate basis to deny diversion, assuming there is no abuse of discretion with the analysis.” (People v. Russo (2026) 121 Cal.App.5th 134, 139.) We disagree that the trial court abused its discretion in noting that Diaz had been unsuccessful in previous substance abuse treatment and that no specific program had been identified that would provide treatment to him. While there were few details about Diaz’s prior treatment, his past lack of success in treatment was relevant to the court’s consideration of whether the proposed treatment would be sufficient to address his needs and the safety of treating him in the community. (Id. at p. 140.) Similarly, while not dispositive, that no program was yet identified to provide the proposed treatment was relevant to the court’s evaluation of whether Diaz could, in fact, receive services addressing his “challenging” specialized mental health treatment needs. The trial court did not abuse its discretion in denying the petition for mental health diversion.4 4 The parties both address the eligibility requirement in section 1001.36, subdivision (b)(2). We need not address this issue, having found sufficient evidence to affirm on other grounds.

16 DISPOSITION The trial court order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ADAMS, P. J.

We concur:

HANASONO, J.

KARNOW, J.* * Retired Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.