People v. Wolpert CA1/3

Opinion

Filed 9/1/26 P. v. Wolpert CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A172729 v. (San Mateo County DAVID ALEXANDER WOLPERT, Super. Ct. No. 20-SF012801A)

Defendant and Appellant.

David Alexander Wolpert appeals the denial of his motion for mental health diversion. (Pen. Code, § 1001.36, undesignated statutory references are to this code.) He argues the trial court abused its discretion by finding him unsuitable for diversion based on an insufficient treatment plan and that he posed a danger to the public. We affirm. BACKGROUND We detailed the facts of Wolpert’s offenses in our prior opinion (People v. Wolpert (Mar. 25, 2024, A166450) [nonpub. opn.]), and we incorporate that discussion by reference. In November 2020, he drove to Facebook’s headquarters where he threatened to kill the security guards and brandished a pocketknife. (Ibid.) Police reported that he appeared to be experiencing mental health problems. (Ibid.)

1 The district attorney charged Wolpert with making criminal threats while personally using a deadly weapon and while on bail. (§§ 422, subd. (a), 12022, subd. (b)(1), 12022.1.) Proceedings were suspended after his counsel expressed a doubt regarding his competency. (§ 1368.) He was declared incompetent, committed, and restored to competency. In March 2022, he filed a motion for mental health diversion but withdrew his motion on the advice of counsel. (People v. Wolpert, supra, A166450.) In September 2022, a jury found Wolpert guilty of making criminal threats and found the weapons enhancement true. The trial court “denied probation, sentencing him to three years — the middle term of two years, plus an additional year for the personal use enhancement. He did not serve any time in prison because he was given 1,392 days of presentence custody credit — 696 days for time served and 696 conduct days.” (People v. Wolpert, supra, A166450.) Wolpert appealed, and we reversed after concluding he withdrew his motion for diversion due to ineffective assistance of counsel. (Ibid.) On remand in 2024, Wolpert again moved for mental health diversion. In support, he included a 2022 report by a licensed social worker, which opined that he was both eligible and suitable for diversion. According to her, he was suffering from paranoia and delusions when he engaged in the underlying offense, and he ultimately was diagnosed with delusional disorder. The social worker noted that he required antipsychotic medications but was not receiving them at the time of the offense. On antipsychotic medications, the social worker opined he would do well in a mental health program with medication support and court oversight through the mental health division. And he expressed a desire to continue his psychotropic medication plan — Abilify (an antipsychotic medication) and Lexapro (for 2 depression) — and was willing to work with his treating psychiatrist to explore any changes to his medication regimen. But also accompanying his motion was an updated April 2024 report, which indicated he denied any history of delusions or psychosis. Instead, he believed his diagnosis was simply because he reported being targeted while in jail. Moreover, he believed his symptoms were associated with depression, which impacted his activities of daily living. A 2023 letter that he submitted from the Department of Corrections and Rehabilitation indicated he nonetheless had an additional diagnosis of schizoaffective disorder, bipolar type. And he complied with medications — Lexapro for the past seven years, with a dosage increase in 2023, and Abilify until July 2023. He stopped taking Abilify after developing an eye disease, which affected his vision. Wolpert’s proposed 2024 mental health treatment plan only diagnosed him with major depressive disorder, and it required him to attend psychiatric appointments, take medication, and see his treatment team one to four times each month. In his motion, he indicated he did not currently present any signs or symptoms of a delusional disorder. Clinician notes indicate that he attended a clinic and monthly appointments with his psychiatrist in the community since 2023. He also represented there have been no instances of offending conduct since his release from custody. In opposition, the prosecution argued Wolpert would not comply with treatment as a condition of diversion. He stopped taking his antipsychotic medication. Moreover, the prosecution contended the proposed treatment plan was insufficient. Specifically, the instant offense occurred while he was receiving psychiatric treatment in the community and, according to the prosecution, there was no explanation of how outpatient treatment would differ if diversion was granted. It also argued Wolpert posed an unreasonable 3 risk of danger to public safety under section 1001.36, citing his April 2019 arrest for manufacturing a chemical weapon and making concerning statements to a Sacramento-area member of Congress. After a hearing, the trial court found Wolpert eligible but unsuitable for mental health diversion and denied his motion. The court highlighted his denying any history of delusions and the general nature of the proposed treatment plan — that it appeared similar to a treatment plan that he was on when he committed his instant offense, and it did not address his schizoaffective disorder. The plan lacked specificity as to the frequency or content of individual therapy, such as managing his delusions and lack of insight into his history of mental illness. In this regard, according to the court, Wolpert appeared “unwilling to take medication. He is unwilling to develop some insight into or be honest about the past diagnoses and [the] past things that have happened as it relates to his diagnoses.” Given his dangerousness to the community — that he was capable of making a weapon of mass destruction — the treatment plan did not ensure he could be safely treated in the community. The court reinstated the previous sentence of two years for the conviction for making criminal threats, with an additional one- year term for the weapon enhancement. DISCUSSION Wolpert contends the trial court’s decision finding him unsuitable for mental health diversion based on an insufficient treatment plan was an abuse of discretion. (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147 [mental health diversion decisions reviewed for abuse of discretion].) After considering whether the decision was arbitrary or capricious, the result of “ ‘applying the wrong legal standard,’ ” or based on “ ‘express or implied 4 factual findings that are not supported by substantial evidence,’ ” we conclude no abuse of discretion appears. (Ibid.) “ ‘Pretrial diversion’ ” is “the postponement of prosecution . . . to allow the defendant to undergo mental health treatment.” (§ 1001.36, subd. (f)(1).) A court may grant pretrial diversion if the defendant is both eligible and suitable for diversion. (Id., subd. (a).) To be eligible, (1) the defendant must be diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, and (2) the disorder must be a significant factor in the commission of the charged offense. (§ 1001.36, subd. (b)(1)–(2).) Upon a finding of eligibility, the court must consider whether the defendant is suitable for diversion — that is, the defendant’s symptoms would respond to treatment in the opinion of a qualified mental health expert; the defendant consents to diversion and waives his or her right to a speedy trial; the defendant agrees to comply with treatment as a condition of diversion; and the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (Id., subd. (c)(1)–(4).) As relevant here, if a defendant is both eligible and suitable, the trial court must also be “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).) “This is not an additional eligibility or suitability requirement the defendant must meet.” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892 (Sarmiento).) Rather, it is “an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.” (Ibid., fn. omitted.)

5 There is no dispute Wolpert is eligible for mental health diversion. And although the trial court found his proposed treatment plan was inadequate to address his mental health issues when performing its suitability analysis, its decision to deny diversion on that basis was not an abuse of discretion. (Olson v. Hornbrook Community Services Dist. (2021) 68 Cal.App.5th 260, 268 [reviewing the court’s order “ ‘ “not its reasoning, and affirm an order if it is correct on any theory apparent from the record” ’ ”].) A court, under section 1001.36, subdivision (f)(1)(A)(i), may properly 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, fn. omitted.) As the court noted, the proposed treatment plan does not address his schizoaffective disorder, bipolar type. Nor does the plan address his lack of insight into having a history of delusions or his documented delusional disorder diagnosis. For example, a 2020 psychiatric assessment indicated he was expressing “grandiose delusional content regarding his status as a chemical mechanical engineer who has made a revolutionary design that is being stolen by the Congresswoman and Senator of California.” Yet in the 2024 assessment, he stated that “ ‘I know it sounds crazy when I tell people I work with the government, received letters from Congress, but it is true.’ ” Despite this, the treatment plan only diagnoses Wolpert with depressive disorder, requiring individual therapy, compliance with medication, and meeting with his treatment team. Substantial evidence supported the court’s finding that the proposed treatment plan was inadequate. (People v. Whitmill, supra, 86 Cal.App.5th at p. 1147.) Relying on Siam v. Superior Court (2026) 118 Cal.App.5th 67 — which found the trial court abused its discretion by rejecting an expert’s unrefuted 6 opinion that a defendant’s symptoms are treatable — Wolpert complains the trial court improperly rejected his social worker’s 2022 opinion that he could be treated in the community. (Id. at p. 82.) Reliance on Siam is misplaced. In that case, a licensed psychologist identified the defendant’s specific disorders and explained they could each be addressed by pharmacological methods and psychotherapy. (Id. at pp. 82–83.) Here, in contrast, Wolpert’s proposed treatment plan fails to acknowledge his 2023 diagnosis of schizoaffective disorder. Indeed, the 2022 report specifically noted that Wolpert would succeed in the community given his antipsychotic medications, yet the proposed treatment plan does not identify any. The court’s finding that the 2024 proposed treatment “did not target or could not effectively address [Wolpert’s] particular diagnosis” — one that the 2022 report did not identify — was not an abuse of discretion. (Sarmiento, supra, 98 Cal.App.5th at p. 895, fn. omitted.) The similarities between Wolpert’s prior treatment plan from the time of his instant offense and the proposed treatment plan further support the trial court’s conclusion that the proposed plan was insufficient. (Sarmiento, supra, 98 Cal.App.5th at p. 895.) Before his offense, he was receiving mental health services in the community, and his treatment plan involved active engagement with treatment, communication with his case worker and therapist, and taking Lexapro, his antidepressant. But he was expressing persecutory and delusional thoughts by 2020. He declined any changes in his medication, even though he had escalating delusions, ultimately resulting in his threatening Facebook security guards. His 2024 proposed treatment plan appears similar — regular visits with an individual therapist and treatment team and taking unspecified medication to address his major depressive disorder. But critically, like his 7 prior treatment plan, nothing addresses Wolpert’s denial of any history of delusions or delusional disorder — a disorder that was significant factor in his committing the offense — or any plan for medication if he begins to manifest active delusions. While the “alleged failure of [Wolpert’s] prior . . . treatment programs says nothing about any inadequacy of the proposed plan to address [his] mental health needs,” there is no specific explanation in the record indicating how the proposed treatment plan “is significantly different” from when he committed the underlying offense. (Sarmiento, supra, 98 Cal.App.5th at p. 895, italics omitted.) Absent any evidence establishing those differences, the trial court’s reliance on the inadequacy of the treatment plan to deny diversion was not an abuse of discretion. We reject Wolpert’s argument that the trial court improperly used its residual discretion under section 1001.36 to deny diversion after finding he presented a danger to the community. This argument misreads the record. “[E]ven 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.” (Sarmiento, supra, 98 Cal.App.5th at p. 892.) If exercising this discretion, the court’s “statement of reasons should reflect consideration of the underlying purposes of the statute” — “keep[ing] people with mental disorders from entering and reentering the criminal justice system while protecting public safety” — “and explain why diversion would not meet those goals.” (Id. at p. 893; People v. Whitmill, supra, 86 Cal.App.5th at p. 1149.) But the court here was not exercising this discretion when it made passing reference to Wolpert’s dangerousness. Rather, its comment concerned the inadequacy of the proposed treatment plan. It stated, “The treatment plan is insufficient. He is a danger to the community. And the treatment plan is not 8 one that could ensure he would be safely treated in the community, at least what has been proposed at this time.” DISPOSITION The judgment is affirmed.

9 _________________________ RODRÍGUEZ, J.

WE CONCUR:

_________________________ FUJISAKI, Acting P. J.

_________________________ PETROU, J.

A172729