Filed 6/30/26 P. v. Adamyan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B341291
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24GDCF00086-01)
v.
GAGIK ADAMYAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dorothy L. Shubin, Judge. Reversed with
instructions.
Nicole Kronberg, 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, Assistant
Attorney General, Stephanie C. Brenan and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Appellant Gagik Adamyan asked for mental health
diversion after being charged with shooting at an inhabited
dwelling in violation of Penal Code1 section 246. There are two
issues before us. First, whether substantial evidence supports
the trial court’s finding that Adamyan poses an unreasonable
risk to public safety and is therefore not a candidate for mental
health diversion under section 1001.36; and second, whether the
trial court abused its discretion in finding Adamyan unsuitable
for diversion. We conclude the finding of unreasonable risk to
public safety is not supported by substantial evidence and the
trial court abused its discretion in finding Adamyan unsuitable
for diversion. We reverse with instructions to the trial court to
vacate Adamyan’s plea and place him on mental health diversion.
BACKGROUND
A. The Offense
These facts are taken from the transcript of the
preliminary hearing. At about 1:46 a.m. on March 11, 2024,
police responded to a “shots fired” call in Glendale, California.
Adamyan had fired a gun 10 times at a plywood-covered gate,
leaving 10 bullet holes. Behind the gate were a parking lot and
an opening to street level garage parking for an occupied
apartment building. No cars were hit and no people were at the
site at the time of the early morning shooting. No other bullet
holes other than the ones on the plywood gate were found. There
were no bullet holes next to any apartment windows, although an
officer “noticed holes in the plywood that went further on into the
1 Further statutory references are to the Penal Code.
2
cement behind.” Adamyan stood in the middle of the street,
approximately 20 feet from the gate, as he fired. With both
hands, he aimed directly in front of him at the gate, not into the
air or at the ground. After the shooting, Adamyan unloaded the
magazine of the gun, set the gun on the ground, and walked
away.
There was one eyewitness, a resident of the apartment
building who lived in a second floor unit. He heard shots and
looked out his window. From his second floor window, the
resident saw Adamyan, whom he knew, shooting directly into the
gate. The gate had a piece of paper plate attached to it, taped to
it was a Styrofoam cup. The witness was two floors up and 20
feet from the gate. He saw Adamyan unload and reload the
firearm.
When police arrived on the scene, Adamyan had his hands
up and cooperated with law enforcement. He told the responding
officer, “I was the one who shot at the fence across the street, and
I have a live ammo in my hand.” He obeyed the police officer’s
direction to drop the ammunition. Adamyan told police he no
longer had the gun because he had discarded it at the site, and
then he showed them where the gun was.
Adamyan told police he was in his apartment across the
street when he saw someone slashing his tires. He went outside,
but the person was gone. He shot his gun into the air and at the
“basement” because he wanted help and thought the police would
come to help him. When asked why he did not use his phone to
call for help, he said his phone was off.
B. Mental Health Evaluation
From his arrest in March 2024, Adamyan remained in
custody at the Los Angeles County Jail. On September 26, 2024,
3
he requested mental health diversion pursuant to section
1001.36. Attached to Adamyan’s written request for mental
health diversion were reports from Dr. Emin Gharibian, a
psychologist, and notes from the jail psychiatrists.
Dr. Gharibian’s evaluation occurred after Adamyan had
been in custody and treated by jail psychiatrists for five months.
Dr. Gharibian reported he used the Clinician-Administered PTSD
Scale for DSM 5 (CAP-5) and Historical Clinical Risk
Management 20-Version 3 (HCR 20 VC) in making his
assessments. He also reviewed Glendale Police Department
Reports dated March 12, 2024; an April 12, 2024 probation
report; the preliminary hearing transcript from April 30, 2024;
the criminal complaint; and Adamyan’s jail records.
1. Symptoms While in Custody
Dr. Gharibian summarized Adamyan’s jail records, which
contained information from a prior hospitalization in October
2023 when “firefighters brought him in after he was stabbed
twice in the chest and once in the left hip.” The jail admission
paperwork from the night of his arrest disclosed Adamyan
reported a history of depression and using marijuana. The
paperwork noted that he was “ ‘odd’ ” and “ ‘hostile.’ ” He was
easily agitated, became hostile and/or angry, and started yelling
out of nowhere. Upon admission to the county jail on March 15,
2024, Adamyan denied using illicit drugs. Initially he seemed
confused, rambling and talking over questions. There were
concerns that this was possibly due to a language barrier. He
reported that he was being treated for depression. He was also
described as “ ‘jolly, chuckling some, interactive, and not upset
other than not happy about his arrest.’ ” On April 12, 2024,
deputies found Adamyan screaming and using vulgar language.
4
He shouted at another inmate with his fist clenched and yelled
racial slurs. He told deputies he was an Army officer, and he
outranked them.
The next day, Adamyan was seen by jail mental health
staff, and he “calmed down and was more cooperative.” He stated
the other inmate called him racist and wanted to fight him. He
reported feeling more depressed lately. He told the psychiatrist
he experienced auditory hallucinations of people talking. The
psychiatrist noted Adamyan was rambling, hyperverbal, and
mostly incoherent. His thoughts were described as disorganized
and illogical without further elaboration. (It was unclear if the
evaluation was completed in Armenian or English.) He was
prescribed Abilify 10 mg. and given various diagnoses, including
Unspecified Schizophrenia Spectrum and Other Psychotic
Disorder, with rule-outs of substance-induced psychosis,
schizophrenia, schizoaffective disorder and mood disorder. The
psychiatrist noted Adamyan was not a reliable historian and had
had minimal contact with mental health services until that point.
One month later, Adamyan was seen again by jail mental
health staff for a follow-up appointment. An Armenian
interpreter was used in this evaluation. Adamyan had been
taking his medications as directed. He reported depression as
well as auditory and visual hallucinations and anxiety. He
denied any paranoia, delusions, or command auditory
hallucinations. There were no overt signs of psychosis. Adamyan
reported hearing a buzzing noise in his ears and sleeping poorly
because he was constantly thinking about things. He
experienced nightmares related to his seven-year service in the
Armenian Army. He reported he did breathing exercises, read
5
books, and walked around to help with his anxiety and
depression.
On May 30, 2024, Adamyan was reevaluated, again with an
Armenian interpreter. He reported experiencing auditory
hallucinations, voices of people which came and went. He had
withdrawn from family, although he reported he was usually very
upbeat and social. He was prescribed Zoloft 50 mg. with Abilify
15 mg.
Adamyan was again seen by jail psychiatrists on August
22, 2024. (He had been in custody by now for five months.) He
reported occasional depression and anxiety. His moods went up
and down. He denied feeling paranoid in jail but reported feeling
paranoid in the community. He related hearing voices of people
talking from his time in the Armenian wartime army. He was
prescribed Zoloft 75 mg., Abilify 15 mg., and Benadryl 25 mg.
His various diagnoses included Unspecified Mood Disorder,
Unspecified Anxiety Disorder, and Unspecified Psychotic
Disorder.
While in custody, Adamyan took the prescribed medication.
His mental health vastly improved as his medications were
increased. By August 22, “he did not appear to be in distress, and
there were no signs of psychosis.”
2. Adamyan’s Personal History
Adamyan said he was born in Armenia and moved to
Boston in 2003. His marriage ended in 2009 or 2010, and his
daughter lives with his ex-wife. He moved to Los Angeles in 2018
to help his sister who was ill and having surgery. He has lived by
himself for the past 13 or 14 years in a Section 8 apartment.
6
Adamyan was a gymnastics coach and teacher, worked in a
jewelry business and a limo company, and transported medical
supplies. He stopped working in 2018 or 2019 when he began
struggling with depression. He had no history of being on
Supplemental Security Income or disability. He reported being
stabbed five times in the chest around October 2023 and had to
undergo surgery.
Although Adamyan was using marijuana daily prior to
being arrested because it made him feel “balanced,” he had no
history of substance abuse treatment. He started to use
methamphetamine after his divorce because it helped him feel
relaxed. He used it two to three times a week for two to three
years prior to being arrested. He also started to abuse alcohol
after his divorce. Just before his arrest, he did not abuse alcohol.
He would drink twice a week and might have two to three beers.
He last used cocaine two years before his arrest and, when he did
use, it was with others when he was drinking.
Adamyan reported that his primary care doctor diagnosed
him with depression. He was not taking medication, but would
do breathing exercises, drink water, work out, and lift weights.
He felt depressed due to pain from his heart surgery as well. He
smoked marijuana daily because it helped him feel good. He was
calm and linear, but he was talkative. During the evaluation, he
denied any symptoms related to depression, PTSD, mania, or
psychosis at that time. He only reported a history of depression.
There were no signs of psychosis or mania.
Adamyan has had no mental health treatment in the
community. Along with his depression beginning in 2018/2019,
he felt hopeless and unable to focus; he struggled to sleep and
had headaches. He has a service dog to help with anxiety.
7
3. Dr. Gharibian’s Evaluation
By August 27, 2024, when examined by Dr. Gharibian,
Adamyan’s thinking was “linear, logical, and easy to follow.”
Adamyan experienced auditory hallucinations of voices of
deceased people. He did not display any overt signs of psychosis
and overall “presented with good insight into his issues with
depression and substance abuse” and “has been cooperative with
treatment” while in county jail.
As of August 27, 2024, Adamyan was calm and cooperative.
His hygiene and grooming were good; he was aware of who he
was, where he was, and the purpose of the evaluation. There was
no evidence of confused, illogical or delusional thinking. He
spoke clearly with an average pace and volume with no overt
memory or attention impairments. He presented with good
insight into his issues with depression and substance abuse.
Dr. Gharibian concluded Adamyan’s “reasoning and
decision-making regarding his actions were illogical and not
grounded in reality. He does not have any criminal history or
violence. He believed that discharging his firearm would get the
police to come and help him. It is unclear if his tires were
slashed or if there was anyone else in a vehicle on the street. He
denied using methamphetamine on the day of his arrest;
however, he reported that he was smoking marijuana. [¶] . . .
Individuals with psychosis, even outside of substance abuse,
present with paranoid and delusional thinking and often
misinterpret the information around them (e.g., they might
believe that someone is talking about them or is a threat to
them). When they are not medication compliant, they can engage
in irrational and unpredictable behaviors that place themselves
and others at risk for harm.”
8
Dr. Gharibian opined that 1) Adamyan has a qualifying
mental disorder, as he met the diagnostic criteria for major
depressive disorder, recurrent episode, with psychotic features;
cannabis use disorder, severe, in a controlled environment;
stimulant use disorder, amphetamine type substance, severe, in a
controlled environment; 2) his mental disorder played a
significant role in the alleged offense; 3) the symptoms of the
mental disorder that caused, contributed to, or motivated the
criminal behavior are likely to respond to treatment; 4) he is
willing to comply with treatment as a condition of diversion;
5) there is not an unreasonable risk of danger to public safety as
defined in section 1170.18 if Adamyan is treated in the
community.
Dr. Gharibian considered whether Adamyan’s symptoms
were drug-related. “[H]is jail records indicate that he was
presenting with psychotic symptoms a month after he was
incarcerated. His symptoms started to resolve once he was
prescribed medications. He denied using any drugs while
incarcerated, and his records did not indicate information to
suggest that he was under the influence while in county jail.
Although his substance use can exacerbate his symptoms, his
records suggest he has presented with signs of psychosis outside
of substance abuse as well. While he has been given various
diagnoses while incarcerated, the combination of major
depressive episodes along with psychotic symptoms would be
consistent with Major Depressive Disorder, Recurrent Episode,
with Psychotic Features.” (Boldface omitted.)
Dr. Gharibian explained, “Major Depressive Disorder with
Psychotic Features is a type of major depression where, in
addition to experiencing the typical symptoms of depression, a
9
person also has symptoms of psychosis. These psychotic
symptoms can include delusions (false beliefs that are not based
on reality), hallucinations (seeing or hearing things that are not
actually there), paranoia, disorganized thoughts, or
agitation/aggression. Individuals with this condition not only feel
persistently sad, hopeless, or disinterested in daily activities but
also might experience severe disruptions in their perception of
reality.”
Dr. Gharibian also diagnosed Adamyan with Cannabis Use
Disorder, Severe, In a controlled environment, and Stimulant
Use Disorder, Amphetamine Type Substance, Severe, In a
controlled environment. “The only reason he is sober is because
he is incarcerated and in a controlled environment.” He
recommended that Adamyan be placed in an evidence-based
residential drug and mental health treatment program due to the
severity of his substance use, depression, and co-occurring
psychosis. The duration of his treatment would have to be
determined by his treatment team, which would also create a
transition plan to step him down to an intensive outpatient
program or a general outpatient drug and mental health
treatment program in the community. He noted that Adamyan
reported a desire to attend treatment, which was borne out by his
willingness to take psychotropic medication while in jail.
Finally, Dr. Gharibian found Adamyan would not present
an unreasonable risk of danger to public safety if treated in the
community. He currently displayed minimal risk factors, which
Dr. Gharibian attributed to Adamyan’s sobriety while
incarcerated, good insight into his issues, cooperation with
treatment, and lack of prior criminal history. Dr. Gharibian
opined that if Adamyan were provided with resources and
10
treatment, remained cooperative, and stayed sober, he would not
pose an unreasonable risk to public safety. Dr. Gharibian wrote:
“His only historical risk factors for violence include a history of
untreated depression and substance abuse. . . . He would use
drugs in order to self-medicate due to feeling depressed.
Although he discharged a firearm in his case, it was not directed
towards anyone, and there was nobody that was harmed. His
decision-making and judgment were ultimately impaired due to
his underlying mental illness (depression with psychotic features)
as well as being under the influence of marijuana. [¶] He has
minimal current/clinical risk factors for violence; however, this is
because he is incarcerated and sober. He has good insight into
his issues with depression and substance abuse. He was offered
mental health treatment in county jail and has been cooperative
with treatment. Although he has never attended treatment in
the community, he reported that he would agree to attend a
residential mental health and substance abuse treatment
program. [¶] Given his history of depression, ongoing substance
abuse in the community, and lack of evidence-based drug or
mental health treatment in the community to minimize his risk
of violence, if he is treated in the community, the only viable
option would be a residential drug and mental health treatment
facility for at least 60 to 90 days. His treatment team would have
to determine the exact duration and details of treatment.” Dr.
Gharibian specifically noted that the residential mental health
treatment he was recommending did not involve a locked facility.
C. Request for Mental Health Diversion
Adamyan presented Dr. Gharibian’s evaluation to the trial
court as an exhibit to his motion for mental health diversion. In
addition to Dr. Gharibian’s diagnosis, Adamyan presented two
11
additional factors in support of mental health diversion: he had
no criminal history and he was in his early 50’s, well past the age
when people are likely to reoffend. He also noted that the offense
behavior occurred while he was experiencing depression and
psychosis, and self-medicating with alcohol and marijuana. Since
his arrest, he had stabilized in custody and was willingly
accepting treatment and medication.
Adamyan advised the court he had been accepted into a
one-year dual diagnosis residential treatment program, JCOD-
STOP, through the Amity Foundation. This program included
“individual therapy, group therapy, rehabilitation sessions, and
case management each week, in addition to monthly meetings
with a psychiatrist to monitor Mr. Adamyan’s psychotropic
medications.” JCOD-STOP is a residential treatment program
for up to one year, and it provides regular reports to the court,
defense counsel and the prosecutor on the patient’s progress. It
is a more intensive program than the 60 to 90 day dual diagnosis
option recommended by Dr. Gharibian.
The People filed a lengthy written opposition arguing
Adamyan presented an unreasonable risk of danger to the public.
The People acknowledged Adamyan had no criminal history and
no history of mental health treatment prior to his arrest, despite
his depression diagnosis. The People agreed the one-year JCOD-
STOP program was appropriate, but they advised the court that
they would only agree to it after Adamyan pled to the charge and
was placed on probation. They advised the court: “The People
would agree to this program after a plea and probation.
Supervision by the probation department would provide an added
public safety guard that the People would agree to.” They
distinguished cases presenting very similar facts and argued that
12
“defendant’s conduct was extremely dangerous to human life and
could have resulted in either great bodily injury or death but for
the hour of the morning and the fact that no one was walking by
or in the parking structure at the time that he fired 10 rounds at
the parking garage structure. This could have resulted in a
super strike and thus, these facts necessitate a finding that the
defendant constitutes a danger to public safety and that there is
a likelihood of the defendant committing a super strike.”
Acknowledging that “[c]ourts have . . . criticized such a
sentiment,” the People urged the court, as an alternative to
mental health diversion, to impose a probationary sentence which
“would act as an incentive for the defendant to refrain from
committing further violence.” The People concluded by stating
the “proposed mental health treatment plan for the defendant
does not take into account the following factors that would
prevent the defendant from becoming an unreasonable risk to
public safety by treatment in a community based mental health
treatment program: the proposed program is an unlocked
program from which the defendant can easily discharge himself.”
In summary, the People did not dispute that Adamyan needed
mental health treatment or that his mental illness contributed
significantly to his involvement in the offense. Their only
opposition to diversion was that diversion would mean he was not
under the supervision of the probation department which, they
believed, would be a necessary added protection for the safety of
the public and an added incentive to Adamyan to remain law
abiding.
D. Trial Court’s Ruling
On September 26, 2024, the trial court heard Adamyan’s
motion for mental health diversion. Defense counsel advised the
13
court that the People were “willing to allow Mr. Adamyan to
plead to the charge for [a] probationary sentence. [¶] And what
that says is that he would be placed on probation and be doing
that lengthy residential dual diagnosis treatment program
regardless of whether he was placed on mental health diversion
because that is the—essentially what the People’s offer is if the
mental health diversion is not granted.” Adamyan’s counsel
continued: “To me what that means is that the People agree that
mental health treatment would be indicated in this case and
would be helpful to Mr. Adamyan who has been in custody since
the date of the incident which is several months ago. The only
difference would be that Mr. Adamyan, [a] 51-year-old man who
has no criminal record, would have a serious felony conviction on
his record if he pled and were placed on probation. [¶] The length
of diversion is the same as the length of probation. There are
regular check-in reports that he would be required to show
progress on during the period of diversion, and I think it’s
arguable that the mental health diversion would actually provide
more oversight for Mr. Adamyan than if he were just assigned a
probation officer and told to come in once a month.”
The People argued they opposed “mental health diversion
given the public safety concern. Mr. Adamyan shot at the
parking structure ten times. It’s an apartment building. But for,
perhaps, the hour, the early morning hours is one—probably the
reason nobody was hurt. He was aiming it directly at the
apartment building. It struck the parking structure ten times.”
(We note this recitation of the facts does not completely comport
with the evidence presented at the preliminary hearing.)
14
In reply, defense counsel emphasized Adamyan had no
prior criminal record, stabilized in custody, and “is precisely the
type of person that the mental health diversion statute was
designed for, someone who committed an act because of a mental
illness and who can respond to treatment and wants to get
treatment and also significantly who has not—who has not been
placed on something like diversion or given mental health
treatment before and failed. He hasn’t ever been given this
opportunity before.”
The trial court denied the motion for mental health
diversion “on the grounds of danger to the community. [¶] I’ve
granted mental health diversion on a number of cases. Weapons
were used, a knife or other weapons. The problem here [is] we’re
talking about a handgun. It was reported that Mr. Adamyan was
firing the handgun with two hands, multiple rounds. Th[ere]
were ten bullet holes in the plywood, and it was fired toward an
apartment building with significantly—it was 10 feet away from
a witness’s apartment. Very fortunate for Mr. Adamyan and
everyone else that no one was hit by this or injured. [¶] The court
finds—there’s more [than] a reasonable possibility that Mr.
Adamyan could commit a super-strike, and I think the conduct is
so highly dangerous—again, fortunate that there weren’t worse
consequences than these. The court rules this is not a suitable
case for mental health diversion.”
Adamyan then entered a plea of no contest to the charge of
shooting at an inhabited dwelling and was sentenced to two years
of formal probation with the condition that he enter a residential
treatment program until authorized for release by the program
director, probation officer, or the court. Adamyan timely
appealed.
15
DISCUSSION
On appeal, Adamyan disputes whether he poses an
unreasonable risk of danger to public safety if treated in the
community on diversion and contends the trial court abused its
discretion in finding him unsuitable for diversion.
A. Applicable Law
Section 1001.36 authorizes courts to grant pretrial mental
health diversion to defendants who meet six qualifying
requirements. (§ 1001.36, subds. (a), (b)(1); People v. Williams
(2021) 63 Cal.App.5th 990, 995 (Williams).) “The stated purpose
of the diversion statute ‘is to promote all of the following: [¶]
(a) Increased diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety. [¶] (b) Allowing
local discretion and flexibility for counties in the development
and implementation of diversion for individuals with mental
disorders across a continuum of care settings. [¶] (c) Providing
diversion that meets the unique mental health treatment and
support needs of individuals with mental disorders.’ ” (People v.
Frahs (2020) 9 Cal.5th 618, 626 (Frahs); § 1001.35, subd. (a).) If
“the defendant successfully completes diversion, including having
in place a plan for long-term mental health care, the criminal
charges shall be dismissed. (§ 1001.36, subd. (e).) However, if
after diversion is granted, a qualified mental health expert
concludes the defendant ‘is performing unsatisfactorily in the
assigned program,’ the court shall, after notice to the defendant,
hold a hearing to determine whether criminal proceedings should
be reinstated or treatment modified. (Id., subd. (d)(4)(A).)”
16
(People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150
(Whitmill).)
The statute has been amended over the years. Recent
amendments have only confirmed the Legislature’s desire to
expand mental health treatment through diversion, bearing out
judicial pronouncements that the Legislature intended the
mental health diversion program to apply as broadly as possible.
(Frahs, supra, 9 Cal.5th at p. 632; Whitmill, supra,
86 Cal.App.5th at p. 1149.)
Effective January 1, 2023, mental health diversion requires
the trial court to find that the defendant is both eligible for
diversion and suitable for the program.
A defendant is eligible if they meet two criteria: first, the
defendant must have been “diagnosed with a mental disorder as
identified in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders,” within the last five
years, by a qualified mental health expert. (§ 1001.36, subd. (b).)
Second, the disorder must be a significant factor in the
commission of the charged offense. 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.” (§ 1001.36, subd. (b)(2).) This presumption cannot be
overcome by the mere absence of evidence demonstrating the
defendant’s mental illness was a factor in the alleged offenses. If
a mere absence of evidence were sufficient, the court would
effectively be impermissibly shifting “the burden to [defendant] to
affirmatively prove that his mental disorder contributed to the
offenses.” (Lacour v. Superior Court (2025) 110 Cal.App.5th 391,
17
404; see Gomez v. Superior Court (2025) 113 Cal.App.5th 671,
688–689.)
If the defendant satisfies the statutory eligibility
requirements, the court must then consider whether the
defendant is suitable for pretrial diversion. The four criteria to
assess suitability are grouped in section 1001.36, subdivision (c).
As with the “diagnosis” eligibility requirement, the first of these
relies on input from a medical professional, in this instance “the
opinion of a qualified mental health expert,” that the symptoms
of defendant’s mental disorder “would respond to mental health
treatment.” (§ 1001.36, subd. (c)(1); Sarmiento v. Superior Court
(2024) 98 Cal.App.5th 882, 893–894 (Sarmiento).) The second
and third requirements are satisfied if the defendant agrees to
waive their speedy trial rights and to comply with treatment as a
condition of diversion. (§ 1001.36, subd. (c)(2), (3).)
Only the fourth requirement necessitates a trial court
finding, to wit, that the defendant “will not pose an unreasonable
risk of danger to public safety . . . if treated in the community.”
(§ 1001.36, subd. (c)(4); Sarmiento, supra, 98 Cal.App.5th at
p. 892.) Even here, however, the Legislature has narrowly
defined the applicable criteria. Borrowing from sections 1170.18,
subdivision (c) and 667, subdivision (e)(2)(C)(iv), an
“unreasonable risk” to public safety “means a likelihood that the
defendant will commit one of the violent felonies specifically
enumerated in the statute.” (Sarmiento, at p. 892.) As listed in
section 667, subdivision (e)(2)(C)(iv), these felonies are:
• Sexually violent offenses and several sexual offenses
with minors under the age of 14 or more than 10 years
younger than the defendant
• Murder, attempted murder
18
• Gross vehicular manslaughter and vehicular
manslaughter while intoxicated
• Solicitation to commit murder
• Assault with a machine gun on a police officer or
firefighter
• Possession of a weapon of mass destruction
• Any serious or violent felony punishable by life
imprisonment or death
These felonies are colloquially known as “super strikes.”
(Williams, supra, 63 Cal.App.5th at p. 1001.)
In determining whether a defendant poses an unreasonable
risk to public safety, the court may consider the opinions of the
district attorney, the defense, or a qualified mental health expert.
It may also consider the defendant’s treatment plan, violence and
criminal history, current charged offense, and any other factors
the court deems appropriate. (§1001.36, subd. (c)(4).)
Assuming the 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); People v. Gerson (2022)
80 Cal.App.5th 1067, 1079 (Gerson).) This is not an additional
eligibility or suitability requirement the defendant must meet.
Rather, subdivision (f)(1) of section 1001.36 read as a whole
appears to contemplate an ongoing assessment to assure that
defendant will receive appropriate treatment for their particular
conditions as part of the diversion program. (Sarmiento, supra,
98 Cal.App.5th at p. 892.)
19
Finally, even if a defendant has made a prima facie
showing that all the express statutory eligibility and suitability
requirements are met, the court may still exercise its discretion
to deny diversion. But this “residual” discretion is not unfettered;
it must be exercised “ ‘consistent with the principles and purpose
of the governing law.’ ” (People v. Qualkinbush (2022)
79 Cal.App.5th 879, 891 (Qualkinbush).) Where the court
chooses to exercise that residual discretion to deny diversion, its
statement of reasons should reflect consideration of the
underlying purposes of the statute and explain why diversion
would not meet these goals. (Sarmiento, supra, 98 Cal.App.5th at
pp. 892–893; Qualkinbush, at pp. 891–892.)
The goals include 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; a preference to keep people with mental disorders
from entering and reentering the criminal justice system while
protecting public safety; a desire to give counties discretion in
developing and implementing diversion across a continuum of
care settings; and the provision of mental health rehabilitative
services. (Sarmiento, supra, 98 Cal.App.5th at pp. 892–893;
Qualkinbush, supra, 79 Cal.App.5th at p. 886.) The trial court
must treat the matter as if the charges against the defendant
have not yet been adjudicated; the court is not sentencing the
defendant. (Qualkinbush, at p. 892, fn. 11.)
B. Standard of Review
We review the trial court’s factual findings as to the
enumerated statutory criteria for substantial evidence. (Gerson,
supra, 80 Cal.App.5th at p. 1079.) Under this deferential
standard of review, “ ‘we must view the evidence in the light most
20
favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ ” (Ibid.) “ ‘Although we must ensure
the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of
the facts on which that determination depends.’ ” (Ibid).
We review the trial court’s ultimate decision whether to
grant mental health diversion for an abuse of discretion. (Gerson,
supra, 80 Cal.App.5th at p. 1080.) By its terms, section 1001.36
is designed to encourage trial courts to broadly authorize pretrial
mental health diversion, providing treatment for qualifying
mental disorders that result in criminal behavior. As with any
principled exercise of discretion, the court must utilize the
appropriate criteria consistent with the principles and purposes
of the governing law, only drawing conclusions supported by
substantial evidence. (Sarmiento, supra, 98 Cal.App.5th at
p. 887.)
C. Analysis
Here, the trial court found Adamyan unsuitable because
“there’s more [than] a reasonable possibility that Mr. Adamyan
could commit a super-strike, and I think the conduct is so highly
dangerous—again, fortunate that there weren’t worse
consequences than these.” We find no substantial evidence in
this record to support the trial court’s unsuitability finding. In
other words, there is no substantial evidence that Adamyan will
commit a super strike if on diversion in the community.
Alternatively, if the trial court intended to exercise its residual
discretion, it abused its discretion in doing so.
21
No doubt it is dangerous whenever anyone is shooting a
firearm in the middle of the night near residential buildings. But
the diversion statute does not concern danger in the conventional
sense of the word. It focuses exclusively on super strikes as the
measure of dangerousness. Super strikes are a narrowly drawn
subset of violent felonies involving extreme violence. (People v.
Moine (2011) 62 Cal.App.5th 440, 450.) The super strikes chosen
by the Legislature involve weapons of mass destruction, sexually
violent offenses or sexual offenses with minors, assault with
machine guns on law enforcement and firefighters, murder
offenses requiring proof of intent to kill and malice,
manslaughter involving driving while intoxicated, and violent
offenses calling for the death penalty or life imprisonment
without parole. In short, the Legislature limited the notion of
unreasonable dangerousness to a very specific and extreme type
of danger to public safety.
Putting aside the super strikes that are clearly not
implicated by these facts,2 there was no substantial evidence that
Adamyan would commit murder if he were placed on mental
health diversion in the community. While the trial court focused
on the possibility of serious injury that could have resulted from
Adamyan’s shooting 10 times at the plywood gate, that is not
evidence, much less substantial evidence, that Adamyan would
likely commit murder if he were placed on mental health
2 Under these facts, we presume the trial court was finding
that Adamyan was likely to commit murder if treated in the
community as none of the other super strikes logically flow from
his criminal history or behavior on the night of the offense.
22
diversion in the community, and none of the other facts of the
offense or the offender suggest such a likelihood.
Adamyan committed his offense at 1:46 a.m., a time when
no individuals or groups of individuals were present or likely to
be present on the street. He shot at a wooden gate backed up by
a concrete building, not at windows, doors, or passing cars where
people could have been vulnerable to a bullet spray. Moreover,
he immediately removed the magazine from the weapon and
discarded it before the first responding police officers arrived. He
then cooperated with them without in any way attempting to
endanger their safety or engage them violently, volunteering the
location of the weapon and turning over the ammunition in his
hand. This offense and the way it was committed do not indicate
that Adamyan would engage, if released, in the particular kind of
extreme danger to public safety represented by the enumerated
super strikes, particularly murder or attempted murder.
Our conclusion is further buttressed by other evidence in
the record, including Adamyan’s lack of any criminal history at
age 51. In this regard, we note that the lack of a criminal record
is strong evidence that a defendant is unlikely to commit a future
super strike offense. (People v. Hoffman (2015) 241 Cal.App.4th
1304, 1310.)
Significant to us as well is Adamyan’s willingness to accept
treatment while in custody and the substantial improvement of
his symptoms while on voluntary medication in custody. This
last fact—substantial improvement in symptoms due to pretrial
mental health treatment—is a factor that most courts
unfortunately do not have the opportunity to consider. But it
certainly bodes well for suitability for and success on diversion.
The trial court did not appear to consider Adamyan’s dramatic
23
improvement while on voluntary medication. Adamyan’s
complete cooperation with six months of prescribed treatment,
combined with the facts of this offense, belie any finding that he
was likely to commit a super strike while on diversion.
(Whitmill, supra, 86 Cal.App.5th at p. 1151 [prior record of drug
and theft offenses without super strike convictions, combined
with surrender to law enforcement, is a “far cry” from indicating
a future likelihood to commit super strike offenses].)
The lack of substantial evidence of future dangerousness at
the level of committing a super strike is also borne out by the
court’s ultimate resolution of the criminal charges with the
People’s consent. The People agreed to a disposition that called
for two years of supervised probation with a condition of
residential mental health treatment in the community. They
agreed the program defense counsel had arranged was
appropriate, with no condition that Adamyan be treated in a
locked facility. Likewise, the trial court voiced no problem with
the proposed program. It is difficult to fathom that had the
People formed the impression that Adamyan posed an
unreasonable danger to public safety, they would have agreed to
such a disposition. It is even harder to fathom that the trial
court would have agreed to this disposition as well.
Finally, if the trial court was exercising its residual
discretion to deny mental health diversion, we conclude it abused
its discretion in choosing probation as a “motivator” and
“incentive” to remain law-abiding over the benefits of mental
health diversion with treatment focused on a defendant’s
particular diagnoses. Choosing two years of probation as a
motivating factor over diversion here does nothing more than add
a felony criminal conviction to Adamyan’s criminal history. This
24
is so because if he failed at diversion, he would meet the same
fate as if he violated probation—the prospect of state prison
following a conviction of the offense. The trial court’s conclusion
and the People’s contention that diversion is insufficiently
motivating is simply a challenge to the underlying premise of
diversion itself. (Whitmill, supra, 86 Cal.App.5th at p. 1155
[nothing in the diversion statute suggests the Legislature
intended to give courts discretion to deny diversion simply
because diversion may be less motivating than probation or
prison].)
Neither did the court consider that it has the authority and
obligation to continually assess whether the treatment given to
Adamyan while on diversion is appropriate. (Sarmiento, supra,
98 Cal.App.5th at p. 892; § 1001.36, subd. (c)(4).) Exercising its
assessment obligation would keep the trial court on top of
Adamyan’s compliance with treatment and prognosis. A grant of
probation was not required to execute this duty, making
probation supervision a superfluous safeguard.3
Finally, in exercising residual discretion, the trial court
must consider whether denial of diversion comports with the
Legislature’s purpose in enacting the statute in the first place.
Here it is beyond cavil that the Legislature intended to “divert”
individuals out of the criminal justice system to stop the
3 This is not to say that asking probation to monitor
Adamyan’s progress in treatment as a delegation of the trial
court’s obligation would be improper. But a formal grant of
probation was, in our view, unwarranted as it involved a formal
conviction, perpetuating the cycle of conviction after conviction
for offenses involving mental illness that the Legislature is trying
to stop through diversion.
25
revolving door of convictions and incarcerations that untreated
mental illness promotes. That Adamyan was placed in the same
program but had to sustain a conviction and probationary
sentence in order to get the treatment he needed is a telling
indication that the trial court did not consider the Legislature’s
intent. It chose conviction over diversion and then gave
Adamyan the exact treatment he would have received under
diversion. Under these facts and this statute, the days of
conviction over diversion are no more.
DISPOSITION
The judgment is reversed with directions to vacate
Adamyan’s plea and grant Adamyan’s motion for pretrial mental
health diversion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
VIRAMONTES, J.
SCHERB, J.
26