Filed 11/4/26 P. v. Esparza CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090442
Plaintiff and Respondent,
(Super. Ct. No. BF193720A)
v.
ADAM ESPARZA, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Ellen Ivens-Duran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and
Viktoriya Chebotarev, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Guerra, J.
Defendant Adam Esparza contends on appeal that the judgment must be
conditionally reversed and the matter remanded to the trial court for reconsideration of
defendant’s request for mental health diversion because the trial court erred in denying
diversion based on his diagnoses. The People agree, as do we. We conditionally reverse
the judgment and remand the matter for the trial court to reconsider defendant’s request
for mental health diversion. In all other respects, the judgment is affirmed.
PROCEDURAL SUMMARY
On March 15, 2024, the Kern County District Attorney filed an amended
information charging defendant with second degree robbery (Pen. Code, 1 § 212.5, subd.
(c); count 1). It was further alleged that defendant suffered a prior strike conviction
(§§ 667, subds. (e)–(j), 1170.12, subds. (a)–(e)) and a prior serious felony conviction
(§ 667, subd. (a)). Three aggravating factors were also alleged pursuant to California
Rules of Court, 2 rule 4.421: defendant engaged in violent conduct indicating a serious
danger to society (rule 4.421(b)(1)); defendant had numerous priors or priors of
increasing seriousness (rule 4.421(b)(2)); and defendant had prior prison terms (rule
4.421(b)(3)).
On June 26, 2025, defendant moved for mental health diversion pursuant to
section 1001.36. The trial court denied defendant’s motion.
On August 14, 2025, a jury found defendant not guilty on count 1, but convicted
defendant of the lesser included offense of attempted second degree robbery
(§§ 664/212.5, subd. (c)).
1 All further statutory references are to the Penal Code.
2 All further rules references are to the California Rules of Court.
2.
On September 9, 2025, defendant filed a Romero 3 motion requesting the trial court
strike his prior strike conviction and prior serious felony conviction allegations (§ 667,
subds. (a), (e)).
On September 12, 2025, the trial court dismissed defendant’s prior serious felony
conviction (§ 667, subd. (a)), but denied defendant’s Romero motion to strike his prior
strike conviction (§ 667, subd. (e)). The court found true the aggravating factor alleged
pursuant to rule 4.421(b)(1), but found not true the aggravating factors alleged pursuant
to rules 4.421(b)(2) and 4.421(b)(3). The court imposed a term of four years (the
midterm, doubled pursuant to the Three Strikes law).
On September 15, 2025, defendant filed a timely notice of appeal.
FACTUAL SUMMARY
On August 23, 2022, defendant and another subject entered a department store.
Jason P., the store’s loss prevention supervisor, observed them through a security camera
and recognized defendant from prior contacts with him. He saw defendant and the other
subject quickly select shoes and try them on, which he testified indicated to him that they
were likely intending to steal them. Jason then approached defendant and told him to put
the shoes down. Defendant ignored him and tried to go around him. Jason repeated to
defendant that he needed to put the shoes down. Jason testified that defendant then said
to him, in a rapid and agitated manner, under his breath, “ ‘I’ll shoot you.’ ” Jason
directed his colleague to refrain from intervening and defendant left the store with the
shoes.
DISCUSSION
Defendant contends the judgment must be conditionally reversed and the matter
remanded for the trial court to reconsider his request for mental health diversion because
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3.
the trial court erred in denying his diversion request based on his diagnoses. The People
agree, as do we.
A. Background
On June 6, 2025, defendant filed a motion requesting the trial court grant him
mental health diversion. Defendant’s motion included a report by Dr. Michael Musacco,
a clinical and forensic psychologist. Dr. Musacco evaluated defendant for the purpose of
mental health diversion and diagnosed defendant with stimulant use disorder, antisocial
personality disorder (ASPD), and major depressive disorder. The report noted that while
ASPD is specifically excluded as a potential qualifying condition under the law,
defendant still meets the criteria for mental health diversion due to the diagnoses of
depression and the stimulant use disorder.
On June 26, 2025, the trial court held a mental health diversion hearing. The court
stated it reviewed defendant’s motion and Dr. Musacco’s report. The court noted that, as
the report stated, Dr. Musacco diagnosed defendant with ASPD, but that “[ASPD] is
excluded from the statute under [section] 1001.36[, subdivision] (b)(1),” and stated its
tentative ruling “would be to deny the motion as not making a prima facie case.”
Defense counsel argued, “I believe there was another diagnosis as well aside from
[ASPD].”
The trial court responded, “There is, but once he’s diagnosed with [ASPD] just as
the other excluded diagnosis, … he will not qualify for a program. No one will take
him.”
Defense counsel stated he understood and submitted on the motion.
The prosecution then submitted on the trial court’s tentative ruling.
The trial court denied defendant’s motion for mental health diversion, stating,
“The Court denies the prima facie. Finds that the prima facie does not meet [the
requirements of mental health diversion]. He does have an excludable diagnosis of
[ASPD]. He’s excluded under [section] 1001.36[, subdivision] (b)(1).”
4.
B. Law
“Section 1001.36 authorizes a pretrial diversion program for defendants with
qualifying mental disorders.” (People v. Frahs (2020) 9 Cal.5th 618, 626.) “The purpose
of the statute is twofold: (1) to increase ‘diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal justice system’; and (2) to
provide ‘diversion that meets the unique mental health treatment and support needs of
individuals with mental disorders.’ ” (People v. Moine (2021) 62 Cal.App.5th 440, 447
(Moine).)
Pursuant to section 1001.36, a trial court may grant pretrial diversion under section
1001.36, if the court finds a defendant both eligible and suitable for diversion. (See
Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133–134 (Vaughn).)
Pursuant to section 1001.36, a court may find a defendant eligible for diversion if:
(1) the defendant is diagnosed by a qualified mental health expert in the last five years as
suffering from a qualifying mental disorder included in the Diagnostic and Statistical
Manual of Mental Disorders (DSM); and (2) the mental disorder was a “significant
factor” in the commission of the charged offense. (§ 1001.36, subd. (b)(1) & (2).)
Under the first eligibility prong of section 1001.36, subdivision (b)(1), qualifying
mental disorders include, but are not limited to, “bipolar disorder, schizophrenia,
schizoaffective disorder, or post-traumatic stress disorder, but excluding [ASPD] and
pedophilia.” However, a defendant diagnosed with a mental disorder that is listed as an
excluded disorder under section 1001.36, subdivision (b)(1) is not categorically barred
“from establishing eligibility [for diversion] based on a different, qualifying disorder.”
(Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1018 (Negron).) Section
1001.36, subdivision (b)(1)(A) “simply disallows defendants from establishing eligibility
for diversion based on an excluded disorder.” (Negron, supra, at p. 1018.)
After determining a defendant is eligible for diversion, a court may then find a
defendant suitable for diversion if: (1) a qualified mental health expert opines the
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defendant’s symptoms will respond to treatment; (2) the defendant consents to diversion
and waives his or her speedy trial rights; (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.
(§ 1001.36, subd. (c)(1)–(4); Moine, supra, 62 Cal.App.5th at pp. 447–448.)
“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.” (People
v. Whitmill (2022) 86 Cal.App.5th 1138, 1147.) Courts have “ ‘broad discretion to
determine whether a given defendant is a good candidate for mental health diversion.’ ”
(Ibid.) When a court “ ‘chooses to exercise this 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 those goals.’ ” (Vaughn, supra, 105
Cal.App.5th at p. 135.) “[A] trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377.) However, “[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.” (Moine, supra, 62 Cal.App.5th at p. 449.)
However, “whether a person diagnosed with both qualifying and excluded mental
health disorders is statutorily ineligible for diversion under the language of section
1001.36[, subdivision] (b)(1)(A)” is a question of statutory interpretation reviewed de
novo. (Negron, supra, 70 Cal.App.5th at p. 1016.)
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C. Analysis
Here, as the parties agree, the trial court erred by denying defendant’s request for
mental health diversion based solely on his ASPD diagnosis. 4
Dr. Musacco diagnosed defendant with ASPD, a stimulant use disorder, and a
major depressive disorder. ASPD is an excluded disorder under section 1001.36,
subdivision (b)(1), but both the stimulant use disorder and the major depressive disorder
are qualifying DSM disorders.
In Negron, the defendant was diagnosed with stimulant use disorder, unspecified
schizophrenia spectrum disorder, borderline intellectual functioning, and ASPD.
(Negron, supra, 70 Cal.App.5th at p. 1011.) The trial court denied the defendant’s
motion for mental health diversion, stating his qualifying disorders were all interrelated
with his ASPD, an excluded disorder, stating that “although petitioner has three other
eligible conditions, the fourth diagnosis for ASPD operated as a bar to eligibility.” (Id. at
p. 1013.) However, this court held that the denial of “diversion eligibility merely because
of the existence of an excluded disorder was incorrect.” (Id. at p. 1018.) This court
explained, “because [the] petitioner suffered from eligible, qualifying mental health
disorders that the court accepted as proven, [the] petitioner’s additional diagnosis for
ASPD, an excluded disorder, did not render him statutorily ineligible under section
1001.36[, subdivision] (b)(1)(A).” (Ibid.)
As in Negron, defendant here had both an excluded ASPD diagnosis, and other
qualifying diagnoses that the record shows the trial court accepted as proven, but denied
eligibility based on its conclusion that the diagnosis of ASPD, an excluded diagnosis,
4 Additionally, defendant argues that the court abused its discretion because its
conclusion that “ ‘[n]o one will take [defendant]’ with an ASPD diagnosis” is not
supported by sufficient evidence. Since we remand the matter because the trial court
erred in denying defendant’s request for mental health diversion based on his ASPD
diagnosis, we need not address this second issue.
7.
functioned as a categorical bar to eligibility despite his other qualifying diagnoses.
Accordingly, the trial court erred when it denied defendant’s motion for mental health
diversion based solely on his ASPD diagnosis. As the trial court rested its denial of
diversion on ineligibility under section 1001.36, subdivision (b)(1)(A), it did not consider
the remaining diversion eligibility prerequisites. For example, the trial court did not
consider whether defendant’s mental disorder was a significant factor in the commission
of the charged offense (§ 1001.36, subd. (b)(2)), or whether defendant is suitable for
pretrial diversion (§ 1001.36, subd. (c)).
We conditionally reverse the judgment and remand the matter for a new mental
health diversion hearing for the trial court to consider the remaining eligibility and
suitability prerequisites for mental health diversion. We express no opinion as to how the
trial court should evaluate the remaining eligibility requirements, including the
interrelationship among included and excluded disorders for the purposes of section
1001.36, subdivision (b), or whether defendant’s motion for diversion should be granted.
(Negron, supra, 70 Cal.App.5th at p. 1018.) “ ‘[I]f the [trial] court determines that
[defendant] does not meet the criteria under section 1001.36, or if [defendant] does not
successfully complete diversion, then his convictions and sentence shall be reinstated.’ ”
(People v. Frahs, supra, 9 Cal.5th 618 at p. 641.)
DISPOSITION
The judgment is conditionally reversed and the matter remanded for the trial court
to reconsider defendant’s motion requesting mental health diversion. If the court
determines defendant is not eligible for diversion under section 1001.36, or if defendant
does not successfully complete mental health diversion, the conviction and sentence shall
be reinstated. (See People v. Frahs, supra, 9 Cal.5th at p. 641.) In all other respects, the
judgment is affirmed.
8.