Filed 9/16/26 P. v. Gracida 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. B348853
(Super. Ct. No.
Plaintiff and Respondent, 24VWCF00869)
(Los Angeles County)
v.
ALBERTO RAFAEL
GRACIDA,
Defendant and Appellant.
Alberto Rafael Gracida appeals after he pleaded no contest
to first-degree residential burglary (Pen. Code,1 § 459; count 1),
fleeing a pursuing peace officer’s motor vehicle while driving
recklessly (Veh. Code, § 2800.2; count 3), and possession of a
firearm by a felon (§ 29800, subd. (a)(1); count 5).2 The trial court
1 Further unspecified statutory references are to the Penal
Code.
2 Counts 2 and 4 were dismissed pursuant to a plea
agreement.
sentenced him to six years and eight months in prison. Gracida
contends the trial court erred in denying his motion for pretrial
mental health diversion under section 1001.36. We affirm.
FACTS AND PROCEDURAL HISTORY
In April 2024, police officers responded to a residential
burglary that occurred while the homeowner was away. The
bedrooms had been ransacked, and the homeowner reported
missing items. There was one live round of firearm ammunition
on the bedroom floor; the homeowner did not own firearms. The
homeowner’s vehicle was missing from the garage.
Two days later, police officers located the stolen vehicle and
attempted to initiate a traffic stop. When the police activated
their vehicle’s lights and sirens, the driver of the stolen vehicle,
later identified as Gracida, did not stop and began traveling at
speeds exceeding 90 miles per hour on residential streets.
Gracida also drove in opposite lanes of traffic, made an unsafe
turn, and did not stop at a stop sign. Gracida eventually stopped
at a dead-end alley. The police apprehended the passenger,
Lorrie Rodriguez. Gracida attempted to flee on foot but was
apprehended shortly thereafter.
Officers recovered a machete, narcotics, several computer
tablets, ammunition, and other items belonging to the
homeowner after a search of Gracida and the vehicle. The police
also found a firearm in the bush next to the vehicle.
During his police interview, Gracida said he fled from the
police because he was “scared” due to prior police contacts. The
police interviewed Rodriguez, who said Gracida was her
ex-boyfriend. When the police initiated the traffic stop, Gracida
told her that he burglarized someone two or three days before
and that he was not stopping the car.
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Criminal and social history
Gracida was 32 years old at the time of his arrest. His
criminal history includes a 2010 misdemeanor conviction for
driving under the influence (Veh. Code, § 23152, subd. (b)) and
numerous felony convictions, including convictions in 2016 and
2020 for evading police officers (Veh. Code, § 2800.2). In the 2016
offense, Gracida was involved in a vehicle pursuit in which his
vehicle drove at high rates of speed, ran red lights, drove on the
wrong side of the road, and ended in a collision with two other
vehicles. He was sentenced to a total of two years. In the 2020
offense, Gracida was driving the vehicle that hit a peace officer
on a motorcycle, almost knocking the officer off. Gracida then
sped away through heavy traffic, attempting to evade the officer.
He was sentenced to a total of four years in prison, including a
conviction for assault with a deadly weapon.
In addition to several narcotics related convictions, Gracida
also has a long history of substance abuse issues. He reported
using methamphetamine on a “daily basis” and phencyclidine
(PCP) on a “fairly regular basis.”
Gracida also reported that he was homeless prior to his
arrest and was released from prison less than a year prior. He
has been “more or less” homeless for over 15 years.
Gracida began taking psychotropic medication at 12 years
old. He was diagnosed with bipolar disorder when he was
detained in juvenile hall. He reported that he had been
psychiatrically hospitalized on two occasions while in the
community, but “eloped” from both hospitalizations. He also
reported receiving outpatient mental health treatment in the
community before his current arrest and was prescribed
medication. Gracida received treatment for about two weeks
3
before he stopped going to the clinic and stopped taking his
medication. He relapsed on drugs.
Motion for mental health diversion
Gracida filed a motion for mental health diversion under
section 1001.36. He attached a report prepared by psychologist
Dr. Aram Keshishyan, who had evaluated him. Dr. Keshishyan
opined that Gracida suffered from a mood disorder (likely
depressive disorder), various substance abuse disorders, and a
history of alcohol and opioid use. He also opined that Gracida’s
mental disorders appeared to play a significant role in the
commission of the charged offenses. Dr. Keshishyan opined that
his mental disorders would respond to mental health treatment
and that an intensive inpatient program followed by placement in
a structured residential setting would be most appropriate to
address his needs. Dr. Keshishyan further opined that Gracida
would not pose an unreasonable risk of danger to public safety if
he received, and “remain[ed] adherent,” with mental health
treatment.
The prosecution opposed the motion contending, among
other things, that Gracida was not suitable for mental health
diversion because he posed an unreasonable risk of danger to
public safety. Based on Gracida’s current offenses and his
criminal history, including two prior convictions for evading a
police officer (Veh. Code, § 2800.2), the prosecution asserted
Gracida was “poised to commit the super strike of murder.”
The court held a hearing in which it denied the motion.
The court found Gracida was eligible for diversion (§ 1001.36,
subd. (b)), but found he was unsuitable for diversion (id., subd.
(c)). In considering Gracida’s risk of danger to public safety, the
court stated: “So this is the issue of whether or not . . . defendant
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poses an unreasonable risk of basically committing a superstrike,
as I understand it.” The court summarized the prosecution’s
argument that Gracida posed an “unreasonable risk of
committing a superstrike in terms of the driving and killing
someone, or harming someone.”
Following further argument, the trial court found that
Gracida “pose[d] an unreasonable risk of danger to the public.”
The court stated that it was “extremely concerned about the fact
that he has two prior convictions for evading police, both as
felonies. The same conduct is repeated in this case.” The court
considered Gracida’s “history of violence as it relates to assault
on a peace officer, . . . his prior history . . . of driving under the
influence, and the current evidence that he remains addicted to
drugs and suffers from that substance abuse disorder.”
The court also did not find “that the entirety of [Gracida’s]
reason of fleeing police, which he’s done now on three occasions,
is related to substance abuse disorder or even to his depressive
disorder.” It found that Gracida posed an unreasonable risk to
public safety “in that if he flees police, it is—the danger that’s
recognized in [People v. Watson (1981) 30 Cal.3d 290 (Watson)]
and other decisions regarding not only alcohol-related—or . . .
drug-influenced driving, but also simply reckless driving in terms
of even being sober, and . . . fleeing the police, that these car
chases . . . that happen regularly, he is at—in my view, he’s an
unreasonable risk of repeating that behavior.”
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DISCUSSION
Gracida contends the trial court abused its discretion in
denying his motion for mental health diversion. We conclude
otherwise.
Pretrial mental health diversion “allows for the suspension
of criminal proceedings and potential dismissal of charges upon
successful completion of mental health treatment.” (Sarmiento v.
Superior Court (2024) 98 Cal.App.5th 882, 890.) Section 1001.36
sets forth the eligibility and suitability criteria for diversion.
(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).)
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).)
Only the fourth suitability criterion is at issue here. Under
section 1170.18, an “ ‘unreasonable risk of danger to public
safety’ ” is “an unreasonable risk that the petitioner will commit
a new violent felony” within the meaning of section 667,
subdivision (e)(2)(C)(iv)—colloquially referred to as “super
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strikes.” (§ 1170.18, subd. (c); People v. Whitmill (2022) 86
Cal.App.5th 1138, 1149 (Whitmill).) The “violent felony”
convictions that are relevant here are “[a]ny homicide offense,
including any attempted homicide, defined in Sections 187 to
191.5.” (§ 667, subd. (e)(2)(C)(iv)(IV).) In analyzing the fourth
criterion, the court “may consider the opinions of the district
attorney, the defense, or a qualified mental health expert, and
may consider the defendant’s treatment plan, the defendant’s
violence and criminal history, the current charged offense, and
any other factors that the court deems appropriate.” (§ 1001.36,
subd. (c)(4).)
“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.” (Whitmill, supra,
86 Cal.App.5th at p. 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.’ ” (Ibid.)
Gracida contends the trial court abused its discretion by
applying the incorrect standard to determine whether he posed
an unreasonable risk of danger to the public. We disagree. The
record reflects the court understood and applied the correct
standard to determine that Gracida “poses an unreasonable risk
of . . . committing a superstrike.” The court appropriately
considered Gracida’s criminal history including the two prior
felony convictions for evading police, the current offense for “the
same conduct . . . repeated in this case,” and his substance abuse
issues and prior history of driving under the influence. Based on
these facts, the court found that Gracida posed an unreasonable
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risk of repeating the same conduct of fleeing police and posed a
danger of committing a homicide offense by driving recklessly.
A violent felony includes “[a]ny homicide offense, including
any attempted homicide offense, defined in Sections 187 to 191.5,
inclusive.” (§ 667, subd. (e)(2)(C)(iv)(IV).) Homicide caused by
driving under the influence of drugs or alcohol or by driving
recklessly with implied malice may be sufficient to support a
second degree murder conviction. (Watson, supra, 30 Cal.3d at
pp. 296–297; People v. Fuller (1978) 86 Cal.App.3d 618, 628–629
[a defendant who caused a fatal collision after driving at high
speeds and running a red light to evade the police may be
charged with second degree murder].) Gross vehicle
manslaughter while intoxicated can also qualify as a super strike
in some circumstances. (§ 191.5, subd. (a); § 667, subd.
(e)(2)(C)(iv)(IV).) Here, the trial court correctly applied the legal
standards and reasonably determined Gracida posed an
unreasonable risk of committing a super strike offense.
Gracida further contends the trial court’s finding of danger
is not supported by substantial evidence. We again disagree. On
a substantial evidence review, we “ ‘view the record in the light
most favorable to the prevailing party below and give due
deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.’ ” (Gomez v.
Superior Court (2025) 113 Cal.App.5th 671, 688.)
Here, Gracida had a long criminal history including two
prior felony convictions for the same crime he committed in the
current case—evading the police while driving recklessly. In the
2016 conviction, he caused a collision, and in the 2020 conviction,
he struck a police officer, nearly knocking them off their
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motorcycle. Despite these two prior convictions, Gracida
repeated the same conduct in the current case—he once again led
the police in a high-speed chase while committing other traffic
violations, endangering the public. Additionally, Gracida had a
prior conviction for driving under the influence of alcohol. While
it was an older offense, the trial court could reasonably conclude
it was relevant given Gracida’s ongoing substance abuse and
medication noncompliance in the community.
Substantial evidence also supports the trial court’s implied
finding that Gracida posed this risk of dangerousness even if
treated in the community. Gracida has a long history of
substance abuse addiction beginning when he was a juvenile. At
the time of his arrest, he was using methamphetamine on a
“daily basis” and PCP on a “fairly regular basis.” Gracida
reported that he had been psychiatrically hospitalized on two
occasions in the past, but “eloped” from both hospitalizations. He
also reported receiving outpatient treatment before his arrest and
was prescribed medication, but stopped treatment and
medication and relapsed. Gracida is currently prescribed the
same medications he took prior to his relapse and arrest in this
case. (See People v. Superior Court (Taylor) (2026) 118
Cal.App.5th 1153, 1169 [“where there is no evidence of prior
compliance with treatment, and on the contrary a history of
noncompliance, the trial court must take the possibility of future
noncompliance into account”].)
Gracida contends the trial court disregarded evidence that
his mental health condition was driving his criminal behavior
and evidence that treatment would mitigate his behavior. But
the trial court was not bound by Dr. Keshishyan’s opinions. The
trial court ultimately decides what weight to give such opinions.
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(In re Scott (2003) 29 Cal.4th 783, 823.) Here, the court
considered Gracida’s treatment plan and “the mental health
professional’s opinions, which he doesn’t seem to take into
account in any regard . . . [Gracida’s] prior history of fleeing from
the police and analyzing that in terms of the risk to public
safety.” We do not reweigh evidence or reassess a witness’s
credibility. (People v. Lindberg (2008) 45 Cal.4th 1, 37.)
Because substantial evidence supports the finding that
Gracida posed an unreasonable risk of danger to the public if
treated in the community, we conclude there was no abuse of
discretion in denying the motion for mental health diversion.3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
CODY, P. J. YEGAN, J.
3 Because we conclude substantial evidence supports the
trial court’s finding, we need not address the alternative
argument regarding the court’s residual discretion.
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Andrea C. Thompson and Diego H. Edber, Judges
Superior Court County of Los Angeles
______________________________
Omer A. Khan, 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, Noah P. Hill and Stephen D. Svetich, Deputy
Attorneys General, for Plaintiff and Respondent.