Filed 9/1/26 P. v. Wolpert CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A172729
v.
(San Mateo County
DAVID ALEXANDER WOLPERT, Super. Ct. No. 20-SF012801A)
Defendant and Appellant.
David Alexander Wolpert appeals the denial of his motion for mental
health diversion. (Pen. Code, § 1001.36, undesignated statutory references
are to this code.) He argues the trial court abused its discretion by finding
him unsuitable for diversion based on an insufficient treatment plan and that
he posed a danger to the public. We affirm.
BACKGROUND
We detailed the facts of Wolpert’s offenses in our prior opinion (People
v. Wolpert (Mar. 25, 2024, A166450) [nonpub. opn.]), and we incorporate that
discussion by reference. In November 2020, he drove to Facebook’s
headquarters where he threatened to kill the security guards and brandished
a pocketknife. (Ibid.) Police reported that he appeared to be experiencing
mental health problems. (Ibid.)
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The district attorney charged Wolpert with making criminal threats
while personally using a deadly weapon and while on bail. (§§ 422, subd. (a),
12022, subd. (b)(1), 12022.1.) Proceedings were suspended after his counsel
expressed a doubt regarding his competency. (§ 1368.) He was declared
incompetent, committed, and restored to competency. In March 2022, he
filed a motion for mental health diversion but withdrew his motion on the
advice of counsel. (People v. Wolpert, supra, A166450.)
In September 2022, a jury found Wolpert guilty of making criminal
threats and found the weapons enhancement true. The trial court “denied
probation, sentencing him to three years — the middle term of two years,
plus an additional year for the personal use enhancement. He did not serve
any time in prison because he was given 1,392 days of presentence custody
credit — 696 days for time served and 696 conduct days.” (People v. Wolpert,
supra, A166450.) Wolpert appealed, and we reversed after concluding he
withdrew his motion for diversion due to ineffective assistance of counsel.
(Ibid.)
On remand in 2024, Wolpert again moved for mental health diversion.
In support, he included a 2022 report by a licensed social worker, which
opined that he was both eligible and suitable for diversion. According to her,
he was suffering from paranoia and delusions when he engaged in the
underlying offense, and he ultimately was diagnosed with delusional
disorder. The social worker noted that he required antipsychotic medications
but was not receiving them at the time of the offense. On antipsychotic
medications, the social worker opined he would do well in a mental health
program with medication support and court oversight through the mental
health division. And he expressed a desire to continue his psychotropic
medication plan — Abilify (an antipsychotic medication) and Lexapro (for
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depression) — and was willing to work with his treating psychiatrist to
explore any changes to his medication regimen.
But also accompanying his motion was an updated April 2024 report,
which indicated he denied any history of delusions or psychosis. Instead, he
believed his diagnosis was simply because he reported being targeted while in
jail. Moreover, he believed his symptoms were associated with depression,
which impacted his activities of daily living. A 2023 letter that he submitted
from the Department of Corrections and Rehabilitation indicated he
nonetheless had an additional diagnosis of schizoaffective disorder, bipolar
type. And he complied with medications — Lexapro for the past seven years,
with a dosage increase in 2023, and Abilify until July 2023. He stopped
taking Abilify after developing an eye disease, which affected his vision.
Wolpert’s proposed 2024 mental health treatment plan only diagnosed
him with major depressive disorder, and it required him to attend psychiatric
appointments, take medication, and see his treatment team one to four times
each month. In his motion, he indicated he did not currently present any
signs or symptoms of a delusional disorder. Clinician notes indicate that he
attended a clinic and monthly appointments with his psychiatrist in the
community since 2023. He also represented there have been no instances of
offending conduct since his release from custody.
In opposition, the prosecution argued Wolpert would not comply with
treatment as a condition of diversion. He stopped taking his antipsychotic
medication. Moreover, the prosecution contended the proposed treatment
plan was insufficient. Specifically, the instant offense occurred while he was
receiving psychiatric treatment in the community and, according to the
prosecution, there was no explanation of how outpatient treatment would
differ if diversion was granted. It also argued Wolpert posed an unreasonable
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risk of danger to public safety under section 1001.36, citing his April 2019
arrest for manufacturing a chemical weapon and making concerning
statements to a Sacramento-area member of Congress.
After a hearing, the trial court found Wolpert eligible but unsuitable for
mental health diversion and denied his motion. The court highlighted his
denying any history of delusions and the general nature of the proposed
treatment plan — that it appeared similar to a treatment plan that he was on
when he committed his instant offense, and it did not address his
schizoaffective disorder. The plan lacked specificity as to the frequency or
content of individual therapy, such as managing his delusions and lack of
insight into his history of mental illness. In this regard, according to the
court, Wolpert appeared “unwilling to take medication. He is unwilling to
develop some insight into or be honest about the past diagnoses and [the]
past things that have happened as it relates to his diagnoses.” Given his
dangerousness to the community — that he was capable of making a weapon
of mass destruction — the treatment plan did not ensure he could be safely
treated in the community. The court reinstated the previous sentence of two
years for the conviction for making criminal threats, with an additional one-
year term for the weapon enhancement.
DISCUSSION
Wolpert contends the trial court’s decision finding him unsuitable for
mental health diversion based on an insufficient treatment plan was an
abuse of discretion. (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147
[mental health diversion decisions reviewed for abuse of discretion].) After
considering whether the decision was arbitrary or capricious, the result of
“ ‘applying the wrong legal standard,’ ” or based on “ ‘express or implied
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factual findings that are not supported by substantial evidence,’ ” we
conclude no abuse of discretion appears. (Ibid.)
“ ‘Pretrial diversion’ ” is “the postponement of prosecution . . . to allow
the defendant to undergo mental health treatment.” (§ 1001.36, subd. (f)(1).)
A court may grant pretrial diversion if the defendant is both eligible and
suitable for diversion. (Id., subd. (a).) To be eligible, (1) the defendant must
be diagnosed with a mental disorder as identified in the most recent edition
of the Diagnostic and Statistical Manual of Mental Disorders, and (2) the
disorder must be a significant factor in the commission of the charged offense.
(§ 1001.36, subd. (b)(1)–(2).) Upon a finding of eligibility, the court must
consider whether the defendant is suitable for diversion — that is, the
defendant’s symptoms would respond to treatment in the opinion of a
qualified mental health expert; the defendant consents to diversion and
waives his or her right to a speedy trial; the defendant agrees to comply with
treatment as a condition of diversion; and the defendant will not pose an
unreasonable risk of danger to public safety if treated in the community. (Id.,
subd. (c)(1)–(4).)
As relevant here, if a 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).) “This is not
an additional eligibility or suitability requirement the defendant must meet.”
(Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892 (Sarmiento).)
Rather, it is “an ongoing assessment to assure that defendants will receive
appropriate treatment for their particular conditions as part of the diversion
program.” (Ibid., fn. omitted.)
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There is no dispute Wolpert is eligible for mental health diversion. And
although the trial court found his proposed treatment plan was inadequate to
address his mental health issues when performing its suitability analysis, its
decision to deny diversion on that basis was not an abuse of discretion.
(Olson v. Hornbrook Community Services Dist. (2021) 68 Cal.App.5th 260,
268 [reviewing the court’s order “ ‘ “not its reasoning, and affirm an order if it
is correct on any theory apparent from the record” ’ ”].) A court, under section
1001.36, subdivision (f)(1)(A)(i), may properly reject diversion “if it concluded
that the proposed treatment services did not target or could not effectively
address the defendant’s particular diagnosis.” (Sarmiento, supra, 98
Cal.App.5th at p. 895, fn. omitted.) As the court noted, the proposed
treatment plan does not address his schizoaffective disorder, bipolar type.
Nor does the plan address his lack of insight into having a history of
delusions or his documented delusional disorder diagnosis. For example, a
2020 psychiatric assessment indicated he was expressing “grandiose
delusional content regarding his status as a chemical mechanical engineer
who has made a revolutionary design that is being stolen by the
Congresswoman and Senator of California.” Yet in the 2024 assessment, he
stated that “ ‘I know it sounds crazy when I tell people I work with the
government, received letters from Congress, but it is true.’ ” Despite this, the
treatment plan only diagnoses Wolpert with depressive disorder, requiring
individual therapy, compliance with medication, and meeting with his
treatment team. Substantial evidence supported the court’s finding that the
proposed treatment plan was inadequate. (People v. Whitmill, supra, 86
Cal.App.5th at p. 1147.)
Relying on Siam v. Superior Court (2026) 118 Cal.App.5th 67 — which
found the trial court abused its discretion by rejecting an expert’s unrefuted
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opinion that a defendant’s symptoms are treatable — Wolpert complains the
trial court improperly rejected his social worker’s 2022 opinion that he could
be treated in the community. (Id. at p. 82.) Reliance on Siam is misplaced.
In that case, a licensed psychologist identified the defendant’s specific
disorders and explained they could each be addressed by pharmacological
methods and psychotherapy. (Id. at pp. 82–83.) Here, in contrast, Wolpert’s
proposed treatment plan fails to acknowledge his 2023 diagnosis of
schizoaffective disorder. Indeed, the 2022 report specifically noted that
Wolpert would succeed in the community given his antipsychotic medications,
yet the proposed treatment plan does not identify any. The court’s finding
that the 2024 proposed treatment “did not target or could not effectively
address [Wolpert’s] particular diagnosis” — one that the 2022 report did not
identify — was not an abuse of discretion. (Sarmiento, supra, 98 Cal.App.5th
at p. 895, fn. omitted.)
The similarities between Wolpert’s prior treatment plan from the time
of his instant offense and the proposed treatment plan further support the
trial court’s conclusion that the proposed plan was insufficient. (Sarmiento,
supra, 98 Cal.App.5th at p. 895.) Before his offense, he was receiving mental
health services in the community, and his treatment plan involved active
engagement with treatment, communication with his case worker and
therapist, and taking Lexapro, his antidepressant. But he was expressing
persecutory and delusional thoughts by 2020. He declined any changes in his
medication, even though he had escalating delusions, ultimately resulting in
his threatening Facebook security guards.
His 2024 proposed treatment plan appears similar — regular visits
with an individual therapist and treatment team and taking unspecified
medication to address his major depressive disorder. But critically, like his
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prior treatment plan, nothing addresses Wolpert’s denial of any history of
delusions or delusional disorder — a disorder that was significant factor in
his committing the offense — or any plan for medication if he begins to
manifest active delusions. While the “alleged failure of [Wolpert’s]
prior . . . treatment programs says nothing about any inadequacy of the
proposed plan to address [his] mental health needs,” there is no specific
explanation in the record indicating how the proposed treatment plan “is
significantly different” from when he committed the underlying offense.
(Sarmiento, supra, 98 Cal.App.5th at p. 895, italics omitted.) Absent any
evidence establishing those differences, the trial court’s reliance on the
inadequacy of the treatment plan to deny diversion was not an abuse of
discretion.
We reject Wolpert’s argument that the trial court improperly used its
residual discretion under section 1001.36 to deny diversion after finding he
presented a danger to the community. This argument misreads the record.
“[E]ven where defendants make a prima facie showing that they meet all the
express statutory requirements, the court may still exercise its discretion to
deny diversion.” (Sarmiento, supra, 98 Cal.App.5th at p. 892.) If exercising
this discretion, the court’s “statement of reasons should reflect consideration
of the underlying purposes of the statute” — “keep[ing] people with mental
disorders from entering and reentering the criminal justice system while
protecting public safety” — “and explain why diversion would not meet those
goals.” (Id. at p. 893; People v. Whitmill, supra, 86 Cal.App.5th at p. 1149.)
But the court here was not exercising this discretion when it made passing
reference to Wolpert’s dangerousness. Rather, its comment concerned the
inadequacy of the proposed treatment plan. It stated, “The treatment plan is
insufficient. He is a danger to the community. And the treatment plan is not
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one that could ensure he would be safely treated in the community, at least
what has been proposed at this time.”
DISPOSITION
The judgment is affirmed.
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_________________________
RODRÍGUEZ, J.
WE CONCUR:
_________________________
FUJISAKI, Acting P. J.
_________________________
PETROU, J.
A172729
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