Filed 6/25/26 P. v. Castellon CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B347421
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24CMCF00769)
v.
KEVIN FOUA CASTELLON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Pat Connolly, Judge. Vacated and remanded
with directions.
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, Wyatt E. Bloomfield and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
In the proceedings below, the trial court denied appellant
Kevin Foua Castellon’s petition for mental health diversion
pursuant to Penal Code section 1001.36.1 Section 1001.36
provides a defendant in a criminal case is eligible for mental
health diversion if he demonstrates: (1) he has been diagnosed
with a recognized mental disorder; and (2) that disorder was a
significant factor in the commission of the charged crime. Section
1001.36, subdivision (b)(2) states that, “[i]f the defendant has
been diagnosed with a mental disorder,” this second factor is
presumed “unless there is clear and convincing evidence that [the
disorder] was not a motivating factor, causal factor, or
contributing factor to the defendant’s involvement in the alleged
offense.”
The parties do not dispute Castellon was diagnosed with a
recognized mental disorder. Castellon contends the court erred
in denying his petition either because the court either improperly
shifted the burden to him to prove his mental disorder was a
significant factor in his charged crimes, or because substantial
evidence does not support a finding by clear and convincing
evidence that his mental disorder was not such a factor. We
agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Castellon Is Charged with Robbery and
Brandishing a Replica Gun
In April 2024, the People filed a felony complaint, accusing
Castellon of two counts of second degree robbery and two counts
of brandishing a replica gun; Castellon pled not guilty. In May
1 Undesignated statutory references are to the Penal Code.
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2024, Castellon’s counsel declared a doubt as to Castellon’s
mental competence. The court ordered a psychiatrist to examine
Castellon and prepare a report. The psychiatrist opined that
although Castellon “meets the DSM-V diagnostic criteria for a
Methamphetamine Use Disorder,” he was “mentally competent to
stand trial.” In July 2024, after reviewing the report, the court
found Castellon was “able to understand the nature of the
proceedings taken against him” and “able to assist counsel in the
conduct of a defense in a rational manner.”
In an August 2024 preliminary hearing, witnesses testified
that a masked person robbed a convenience store while one
employee and his friend were there. The stolen money contained
a tracking device. In a car in which Castellon was sitting in the
rear passenger seat, police located the tracking device along with
money, clothing that matched the clothing worn by the robber as
seen in surveillance footage, and a replica firearm. The clothing
was found in the backseat; the replica firearm was found on the
rear passenger-side floor. The money and tracking device were in
the center console of the vehicle.
The court dismissed one count of robbery and one count of
brandishing a replica gun, added a count of criminal threat in
violation of section 422, subdivision (a) (to which Castellon pled
not guilty), and held Castellon to answer on all three counts.
B. The Court Denies Mental Health Diversion
1. The Petition
In January 2025, Castellon filed a petition for mental
health diversion pursuant to section 1001.36. Castellon asserted
he was examined by a licensed psychologist who diagnosed him
with three mental disorders that were a significant factor in the
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commission of the charged offenses. Castellon further argued the
same psychologist found his symptoms would respond to mental
health treatment. Finally, Castellon waived his right to a speedy
trial, agreed to comply with a treatment plan, and denied he
would pose an unreasonable risk of committing a “super-strike” if
treated.
2. The Psychologist’s Report
Attached to the petition was a report authored by
Keyondria Bunch, a licensed psychologist. Bunch opined
Castellon “is suffering from a mental illness and appears to meet
diagnostic criteria for diagnoses of Stimulant Use Disorder,
Major Depressive Disorder, and Unspecified Schizophrenia
Spectrum and Other Psychotic Disorders.” She also stated her
belief that Castellon’s “mental illness played a significant role in
the commission of the charged offenses.” (Boldface removed.)
Bunch noted Castellon “displayed symptoms consistent
with the underlying disorder at or near the time of the incident,
specifically, disorganized behavior, poor judgement/insight, and
impulsivity.” She added that, “[a]t the time of arrest[,] Mr.
Castellon was not medicated, was not in treatment, and was
actively abusing substances. Mr. Castellon shared, at the time of
arrest, he was additionally experiencing auditory hallucinations.
Mr. Castellon was not receiving appropriate community-based
mental health treatment and services that would have been
necessary to aid him in maintaining sobriety and stability.”
3. The Court’s Ruling
In a March 2025 hearing, the court stated it had reviewed
Bunch’s report “very closely” and questioned its reliability. The
court opined that Bunch failed to consider Castellon’s “many
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priors” and their “escalating seriousness.” The court also told
Castellon that, “without even looking at whether or not you may
or may not be looking at committing a super strike in the future,
the court does not find that the work by the doctor is conclusively
based on anything other than your statements.” The court
concluded Castellon was “not a good candidate for mental health
diversion right now” and denied the petition.
C. Castellon Pleads No Contest
In May 2025, pursuant to a plea bargain, Castellon pled no
contest to one count of robbery. The court sentenced him to three
years in state prison and dismissed the other two counts.
In June 2025, Castellon filed a notice of appeal of the
court’s denial of his petition for mental health diversion while
simultaneously requesting the court issue a certificate of
probable cause to permit the appeal. In July 2025, the court
granted the request for a certificate of probable cause.
DISCUSSION
A. Governing Law
“A defendant is eligible for pretrial diversion pursuant to
this section if”: (1) “The defendant has been diagnosed with a
mental disorder as identified in the most recent edition of the
Diagnostic and Statistical Manual of Mental Disorders” and (2)
“The defendant’s mental disorder was a significant factor in the
commission of the charged offense.” (§ 1001.36, subd. (b).)
“The defendant bears the burden of making a prima facie
showing that he or she meets the minimum requirements of
eligibility for diversion.” (People v. Gerson (2022) 80 Cal.App.5th
1067, 1078–1079.) However, “[i]f the defendant has been
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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.” (§ 1001.36, subd. (b)(2).)
Additionally, “the statute gives the trial court discretion to
deny diversion even if the statutory requirements are met.”
(Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134.)
“However, ‘this “residual” discretion must be exercised
“ ‘consistent with the principles and purpose of the governing
law.’ ” ’ ” (Lacour v. Superior Court (2025) 110 Cal.App.5th 391,
401.)
“We review the trial court’s denial of mental health
diversion for abuse of discretion.” (People v. Pacheco (2022) 75
Cal.App.5th 207, 213.) “A court abuses its discretion when it
makes an arbitrary or capricious decision by applying the wrong
legal standard” or when it “bases its decision on express or
implied factual findings that are not supported by substantial
evidence.” (People v. Moine (2021) 62 Cal.App.5th 440, 449.)
B. The Court Erred in Denying Castellon’s Petition
No party disputed Castellon was diagnosed with a mental
disorder as defined in section 1001.36, subdivision (b)(1), and the
court did not expressly address this eligibility requirement.
Instead, the court criticized the Bunch report for not considering
the “many priors” Castellon had, as well as their “escalating
seriousness.” The court also faulted the report for not being
“conclusively based on anything other than [Castellon’s]
statements.” Like the parties, we interpret the court’s comments
as discounting the Bunch report’s conclusion that Castellon’s
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mental disorder played a significant role in the commission of the
charged crimes.
On appeal, Castellon argues that “[t]he court’s finding that
Appellant’s mental disorder was not a significant factor in the
commission of the offense is not supported by substantial
evidence,” and “[t]he court’s finding that Appellant’s criminal
history made him ineligible for diversion improperly shifted the
burden to Appellant to demonstrate his mental disorder played a
significant role in the commission of the offense.” The People
counter that the trial court was well within its discretion to reject
the Bunch report’s conclusion that Castellon’s mental disorder
played a significant factor in his charged offenses.
We agree that a “trial court is not bound by an expert’s
testimony and opinion.” (In re J.S. (2024) 105 Cal.App.5th 205,
212; see also In re Scott (2003) 29 Cal.4th 783, 823 [“The fact
finder determines the facts, not the experts. Indeed, the fact
finder may reject even ‘a unanimity of expert opinion’ ”].) But
even were the court to discount the Bunch report’s conclusion in
its entirety, “the absence of evidence proving that petitioner’s
mental disorder was a factor in the commission of the offenses is
not substantial evidence supporting a finding by clear and
convincing evidence that petitioner’s mental disorder was not a
factor in the commission of the offenses. It was the prosecution’s
burden to present such clear and convincing evidence.” (Lacour
v. Superior Court, supra, 110 Cal.App.5th at p. 404.)
Here, the only “evidence” noted by the court was Castellon’s
“many priors” and their “escalating seriousness.” The People do
not explain, and we do not see, how Castellon’s escalating priors
constituted clear and convincing evidence that his mental
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disorders did not play a significant factor in the commission of
the crimes with which he was charged.
The People also argue that, even if Castellon were eligible
for diversion, the court retained “residual discretion” to deny his
petition. But “[a] court abuses its discretion when it makes an
arbitrary or capricious decision by applying the wrong legal
standard” or when it “bases its decision on express or implied
factual findings that are not supported by substantial evidence.”
(People v. Moine, supra, 62 Cal.App.5th at p. 449.) Here, it
appears that the court either placed the burden on Castellon to
demonstrate his mental disorder was a significant factor in the
commission of the charged offenses or found clear and convincing
evidence that the mental disorder was not a significant factor. In
other words, the court either applied the wrong legal standard or
based its decision on a factual finding unsupported by substantial
evidence. Either way, reversal is required.
DISPOSITION
The trial court’s order denying Castellon’s petition is
vacated, and the matter is remanded to the court with directions
to hold a new hearing on Castellon’s petition for mental health
diversion should Castellon still request such relief. If Castellon
still requests such relief, his conviction is conditionally vacated.
Should the court deny his request for mental health diversion,
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Castellon’s conviction is reinstated. Should the court grant his
request for mental health diversion, his conviction is vacated.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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