Filed 10/19/26 P. v. Coglizer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B346882
(Super. Ct. No. 23CR04486)
Plaintiff and Respondent, (Santa Barbara County)
v.
NANCY LEE ELIZABETH
COGLIZER,
Defendant and Appellant.
Nancy Lee Elizabeth Coglizer appeals following her guilty
plea to conspiracy to commit theft from an elder (Pen. Code,1
§ 182, subd. (a)(1); count 1) and theft from an elder (§ 368, subd.
(d); count 2). She contends the trial court erred when it denied
her request for mental health diversion. (§ 1001.36.) We
conclude substantial evidence supports the conclusion that
appellant’s mental health disorders did not play a significant role
in the commission of the offenses. We will affirm.
1 Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant served as bookkeeper and assistant to the late
Constance McCormick Fearing since 1999. Fearing executed a
power of attorney appointing appellant as her attorney-in-fact in
2018 and as co-trustee of Fearing’s living trust in 2020.
Appellant’s co-defendant, Craig Case, befriended her while
providing security services at Fearing’s large estate in Montecito.
Appellant began loaning Case money from Fearing’s
accounts shortly after receiving power of attorney. She wrote five
checks to him that year totaling $55,000. She continued doing so
over the next two and a half years, some in her capacity as power
of attorney and some as co-trustee of Fearing’s living trust.
Many contained notes in the memo space like “gate and security
consulting,” “security,” or variations of those. Appellant disclosed
the payments to her co-trustee after he confronted her about
them. Investigators later determined Case cashed 104 checks
from the trust account totaling about $690,000.
Prosecutors filed a 53-count felony complaint against
appellant and Case in 2023. Both were charged with theft from
an elder, conspiracy to commit theft from an elder, and
conspiracy to commit grand theft. Case was also charged with
several dozen counts of money laundering. The court held
appellant and Case to answer on all charges. Fearing died while
the criminal case was pending.
Appellant moved for mental health diversion under section
1001.36. She described suffering from major depressive disorder
and PTSD following her mother’s death in March of 2018. She
self-medicated with alcohol. Case “cajoled her to ‘loan’ him
money” by sympathizing with her struggles and convincing her
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that Fearing would authorize the loans if Fearing was in better
health.
Appellant supported her diversion motion with a report
from psychiatrist Jamie Rotnofsky, Ph.D., who diagnosed
appellant with untreated depression, major depressive disorder,
and alcohol abuse disorder. Dr. Rotnofsky concluded these
conditions played a significant role in the charged offenses and
that her symptoms would respond to mental health treatment.
She opined appellant did not pose an unreasonable risk of danger
to public safety and was unlikely to commit a violent felony or
super strike. Her report attached a treatment plan and progress
notes documenting appellant’s psychotherapy between 2018 and
2020. Dr. Rotnofsky noted appellant had completed a 30-day
inpatient substance abuse program in 2020, followed by an
intensive three-month outpatient program.
The People opposed the motion, pointing out appellant
continued to write checks long after finishing substance abuse
treatment and psychotherapy. This demonstrated her crimes
were not motivated by or causally connected to her mental health
disorders. The People submitted a letter from appellant’s co-
trustee, who was her longtime friend and former boss. He
described appellant as “sharp, coherent, articulate, and
personable” when they interacted during the period she was
writing checks to Case. The People introduced text messages and
emails showing her mental health and substance abuse came to a
head in early 2020 but improved after she finished an outpatient
rehabilitation program and received anti-addiction medication.
In an October 2020 email, appellant asked her co-trustee if they
should grant a request by Fearing’s longtime caregiver for help
buying a home. They gave the caregiver $35,000, reasoning that
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Fearing had made similarly generous gifts to other household
staff members in the past.
The trial court denied the motion. It agreed appellant had
three recognized mental health disorders but found “no support
for [Dr. Rotnofsky’s] opinion that these disorders motivated or
were a significant factor in the commission of the charged
offenses.” The court noted “a large portion of the alleged loss . . .
[c]ontinued after she had – she’d been sober for some period of
time, after she had sought treatment, and after she was, by her
own account, doing much better.” It would have denied the
motion regardless, stating, “even if the Court were to find that
she met the second factor under 1001.36(b), I would not grant
mental health diversion in this case because of her continued
conduct even after receiving intensive treatment. What that
shows the Court is that she wouldn’t respond to treatment
because [she was] in treatment and allegedly continued to write
checks to the codefendant.”
We denied appellant’s petition for a writ of mandamus
challenging the denial order. (Coglizer v. Superior Court
(February 28, 2024, B335158) [denial order].) Appellant later
pleaded guilty to theft from an elder and conspiracy. The trial
court suspended imposition of sentence on appellant’s admission
to a 10-year probationary term with terms and conditions,
including 364 days in jail, with leave to apply for electronic
monitoring. It granted a certificate of probable cause to appeal
the denial of the motion for mental health diversion.
DISCUSSION
Standard of Review
A “ruling on a motion for mental health diversion is
reviewed for an abuse of discretion, and factual findings are
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reviewed for substantial evidence.” (People v. Whitmill (2022) 86
Cal.App.5th 1138, 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].’” (People v. Graham (2024) 102 Cal.App.5th
787, 795.) “‘When reviewing a finding that a fact has been proved
by clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true.’” (Lacour v.
Superior Court (2025) 110 Cal.App.5th 391, 401.)
Section 1001.36
Section 1001.36 authorizes mental health diversion for
defendants who meet eligibility and suitability criteria. (Vaughn
v. Superior Court (2024) 105 Cal.App.5th 124, 133 (Vaughn).)
“Eligibility entails satisfaction of two prongs: (1) a defendant has
been diagnosed with a recognized mental health disorder, and (2)
the disorder was ‘a significant factor in the commission of the
charged offense.’” (Ibid.; § 1001.36, subd. (b)(2).)
“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.” (§ 1001.36, subd.
(b)(2).) “A court may consider any relevant and credible evidence,
including, but not limited to, police reports, preliminary hearing
transcripts, witness statements, statements by the defendant’s
mental health treatment provider, medical records, records or
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reports by qualified medical experts, or evidence that the
defendant displayed symptoms consistent with the relevant
mental disorder at or near the time of the offense.” (Ibid.)
If eligibility is established, “the court must consider
whether the defendant is suitable for pretrial diversion.”
(§ 1001.36, subd. (c).) “A defendant is suitable if: (1) in the
opinion of a qualified mental health expert, the defendant’s
mental health disorder would respond to treatment; (2) the
defendant consents to diversion and agrees to waive their speedy
trial rights; (3) the defendant agrees to comply with treatment
requirements; 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.” (Vaughn, supra, 105
Cal.App.5th at p. 134; § 1001.36, subd. (c)(1)-(4).)
The court must be satisfied the recommended program “will
meet the specialized mental health treatment needs of the
defendant.” (§ 1001.36, subd. (f)(1)(A)(i); Sarmiento v. Superior
Court (2024) 98 Cal.App.5th 882, 892.) “Before approving a
proposed treatment program, the court shall consider the request
of the defense, the request of the prosecution, the needs of the
defendant, and the interests of the community.” (§ 1001.36, subd.
(f)(1)(A)(ii).) The court retains residual discretion to deny
diversion. (Sarmiento, at p. 892.) This discretion “must be
exercised ‘“consistent with the principles and purpose of the
governing law.”’” (Ibid.; see also § 1001.35.)
“Significant Factor” Finding
The trial court found appellant suffered from three
recognized mental health disorders. As such, section 1001.36,
subdivision (b)(2) required the court to presume a disorder was a
significant factor in the charged offenses. Appellant contends the
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trial court misconstrued the statute by requiring her to establish
this link instead of requiring the People to show, as subdivision
(b)(2) states, “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.” She highlights
the trial court’s statement that there was “no support” for
Dr. Rotnofsky’s opinion on this point, as well as the People’s
failing to procure rebuttal expert testimony.
We do not interpret the trial court’s oral rulings as showing
it shifted section 1001.36, subdivision (b)(2)’s evidentiary burden
to appellant. The court confirmed it “reviewed the petition filed
by the defense . . . the opposition and the reply.” The diversion
motion articulated the People’s burden clearly. The People’s
opposition conceded appellant’s three diagnoses—alcohol use
disorder, persistent complex bereavement disorder, and major
depressive disorder—but argued clear and convincing evidence
showed they were not a “motivating factor, causal factor, or
contributing factor” in the charged crime. Appellant’s reply brief
reiterated the prosecution’s burden and argued the opposing
evidence failed to satisfy this burden. Neither the trial court’s
finding that the expert’s opinion was not supported nor its failure
to recite section 1001.36, subdivision (b)(2)’s text orally means it
misinterpreted or disregarded the statute.
The record supports the court’s decision. Appellant wrote
104 checks to her co-defendant between October 2018 and April
2022. Her struggles with alcoholism and mental health during
2018 and 2019 are well documented. Her efforts to successfully
rehabilitate herself are also well documented. She completed a
30-day inpatient substance abuse program in February and
March 2020, then participated in an intensive three-month
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outpatient program. She received anti-addiction treatments for
over six months and maintained her sobriety. The co-trustee
described her as “sharp, coherent, articulate and personable”
during this time and never “weak, foggy, jumbled or barely
functioning.”
In text messages downloaded from her phone, appellant
repeatedly assured her therapists she was feeling well after these
interventions. She notified her co-trustee in October of 2020 that
Fearing’s caregiver had requested help buying a house—showing
appellant knew she could not distribute funds casually to friends
of the household. A few months later appellant asked the co-
trustee for a raise. She attached a long list of the tasks she
performed for Fearing, including payroll, bookkeeping,
coordinating medical care, and maintaining the home and
grounds. Yet, as noted by the trial court, appellant continued to
violate her fiduciary duties to Fearing. She wrote 36 checks to
Case totaling $207,000 from February 2020 to June 2021. The
payments stopped only when the new co-trustee began asking
about them. Appellant did not immediately confess her
improprieties, but notified Case, who suggested creating a
backdated consulting agreement justifying monthly payments of
$10,000. She stated this was “too much” and proposed $5,000
instead. Case emailed her a draft agreement. When the co-
trustee began asking appellant about the payments, she initially
responded evasively but admitted the scheme when confronted in
person.
We “must view the record in the light most favorable to the
prevailing party below and give appropriate deference to how the
trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
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inferences from the evidence.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011-1012.) In doing, so, we conclude the record
supports the trial court’s statement that “a large portion of the
alleged loss . . . [c]ontinued after she had – she’d been sober for
some period of time, after she had sought treatment, and after
she was, by her own account, doing much better.” We decline to
revisit what amounts to conflicting evidence about the extent to
which appellant’s mental health and substance abuse were a
“motivating factor, causal factor, or contributing factor” in her
serial theft from Fearing.
Suitability Finding
Even if appellant were eligible for diversion, we would
affirm based on the trial court’s suitability finding. (§ 1001.36,
subd. (c).) Appellant’s motion states she began treatment with a
licensed psychologist in May of 2018 and received a diagnosis of
major depressive order and PTSD from her mother’s death. This
was followed by several months of inpatient and outpatient
substance abuse treatment starting in February of 2020. The
trial court found appellant “wouldn’t respond to treatment
because [she was] in treatment and allegedly continued to write
checks to the codefendant.” The finding is again supported by the
record. Appellant sought support from mental health
professionals for her disorders before, during, and after she
committed the charged crimes. Dr. Ratnofsky recommended
appellant receive similar programming, i.e., monthly psychiatric
care and intensive outpatient treatment, once placed in diversion.
The trial court reasonably doubted whether appellant would
respond to similar treatment offered as a result of being granted
diversion.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Von Deroian, Judge
Superior Court County of Santa Barbara
______________________________
Sanford Horowitz Criminal Defense, Sanford Horowitz, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
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