Filed 7/30/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ADRIAN LEE THOMPSON,
Petitioner,
v.
THE SUPERIOR COURT OF A175757
MARIN COUNTY,
Respondent; (Marin County
THE PEOPLE OF THE STATE OF Super. Ct. No. CR0005705)
CALIFORNIA,
Real Party in Interest.
We hold that a trial court has discretion to impose reasonable
rehabilitative probationary conditions on a defendant who was granted
mental health diversion under Penal Code section 1001.36.1
Petitioner, Adrian Lee Thompson (defendant), was charged with felony
burglary and placed into a mental health diversion program under section
1001.36. As part of its diversion order, the trial court imposed a search
clause, over defendant’s objection, requiring him to submit to a search and
seizure with or without probable cause or a warrant. Defendant contends the
trial court has no authority to impose a search condition as part of an order
1 All statutory references are to the Penal Code unless otherwise
stated.
1
granting mental health diversion under section 1001.36. We disagree and
deny defendant’s petition for writ of mandate.
BACKGROUND
The Marin County District Attorney filed a complaint charging
defendant with one count of felony burglary (Pen. Code, §§ 459, 460,
subd. (b)). The complaint alleged the following aggravating factors:
defendant’s prior convictions are numerous or of increasing seriousness;
defendant served a prior prison term; and defendant had 19 prior felony
convictions, from 2003 to 2015, for burglary (Pen. Code, § 459; eight prior
convictions), fraudulent use of access cards or account information
(Pen. Code, § 484g, subd. (a)), possession of stolen property (Pen. Code, § 496,
subd. (a); two prior convictions), passing a forged document (Pen. Code, § 470,
subd. (d); two prior convictions), unauthorized use of personal identifying
information (Pen. Code, § 530.5, subd. (c)(2)), evading a police officer with
reckless driving (Veh. Code, § 2800.2), possession of a forged instrument
(Pen. Code, § 475; two prior convictions), assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)), and grand theft (Pen. Code, §§ 484–487,
subd. (a)).
At the preliminary hearing, a Marin County Sheriff’s Office detective
testified he responded on December 12, 2024, at 10:30 a.m. to a report of a
theft at a medical office in a building complex in Mill Valley. A witness, who
had an office in the complex, reported that the previous afternoon she
observed a man loitering around the medical offices and looking into multiple
offices. The witness later found the same man sitting in her private office
rather than in the seating area in the main room. She asked him why he was
in her office, and he said he was seeking treatment for his knee. The witness
told him she did not treat knees and asked him to leave, which he did. The
2
witness later learned from two coworkers that items had been stolen from
their purses. The victims told the detective they were missing multiple bank
cards from their purses, which they kept in one of the private rooms in the
medical offices. One of the victims received a fraud alert for one of her
missing bank cards indicating the card was being used at a nearby
department store.
The detective reviewed surveillance security video from the office
complex and from the department store. He observed a man walking around
the office complex as the witness had described. The department store’s
surveillance video from around the time of the fraud alert showed a woman
walk through the store and then walk to a vehicle parked in the parking lot
of an adjacent store. The detective used a license plate reader system to
determine that the vehicle was a rental. Through further investigation, the
detective learned that the phone number listed on the rental contract had
been queried by law enforcement in South Carolina in an investigation of a
similar commercial burglary involving the defendant. The detective also
learned defendant was being investigated for another similar burglary in
Washington. The detective obtained defendant’s phone number from the
Washington state officer and then obtained a search warrant for defendant’s
cell phone records. The cell phone records showed defendant’s phone at the
Mill Valley medical offices at the time of the burglary and then at the
department store at the time of the fraud alert. Defendant was arrested on
April 30, 2025.
Defendant was held to answer as charged. On May 27, 2025, defendant
was arraigned on an information charging one count of second degree
burglary (§§ 459, 460, subd. (b)). He waived his speedy trial rights. Trial was
set for September 2025 and later reset for October 15, 2025.
3
On October 10, 2025, defendant filed a motion for mental health
diversion under section 1001.36. He argued he was eligible for mental health
diversion based upon diagnoses of depression and posttraumatic stress
disorder. Defendant was diagnosed by Turning Point Community Programs
and was prescribed medication and referred to Bay Area Community Services
for therapy. On October 24, 2025, defendant filed supplemental information
stating that he was on a waiting list for counseling/therapy and would be
meeting with Turning Point Community Services on October 29, 2025, to
discuss counseling services and treatment for his mental health disorders.
The People opposed the motion, arguing that although defendant had a
qualifying mental health diagnosis, he had not established he was suitable
for mental health diversion under section 1001.36, subdivision (c).
Specifically, the People argued defendant had not presented evidence that in
the opinion of a qualified mental health expert the defendant’s symptoms of
the mental disorder causing, contributing to, or motivating the criminal
behavior would respond to mental health treatment.
Defendant filed a reply stating he had attended two therapy sessions
and was scheduled to receive a plan for regularly scheduled therapy on
November 18, 2025. Defendant attached additional records from Turning
Point Community Programs summarizing his depression symptoms and
stating he had a traumatic history and had struggled with opiate use for
several years. He was prescribed an antidepressant.
On November 7, 2025, the trial court heard defendant’s motion. The
trial court noted defendant’s extensive criminal record and questioned the
lack of a treatment plan. The matter was continued for defendant to provide
a treatment plan. On December 2, 2025, at the continued hearing, the
defendant had not yet received further information from his treatment
4
provider. The trial court again expressed reservations about the lack of a
treatment plan to satisfy defendant’s particular mental health needs. The
matter was again continued.
On December 11, 2025, defendant filed further documentation stating
he was receiving treatment from a therapist through Bay Area Community
Services and that the therapist agreed to issue periodic reports to the court
evaluating defendant’s compliance with his treatment plan and whether the
treatment is meeting defendant’s needs. Defendant attached a progress
report from his therapist stating defendant had attended four appointments
since October 30, 2025, and was satisfactorily meeting the requirements of
his treatment plan.
At the December 12, 2025, continued hearing, the trial court reiterated
its concerns about granting mental health diversion. It stated that given
defendant’s history of prior burglaries, it would not permit diversion without
a search condition. Defendant objected to the imposition of a search
condition. However, without waiving his objection, he agreed to comply with
its terms. The trial court placed defendant on mental health diversion for a
one-year period. The conditions of diversion included that defendant appear
in court for progress reports every three months and comply with mental
health treatment through Bay Area Community Services, including
attending therapy sessions at least two times a month, following all
recommendations of his treatment provider, and taking medications as
directed by his provider. The trial court also imposed a search condition
requiring defendant to “[s]ubmit to Search and Seizure of your person,
vehicle, residence, and any property under your control any time of the day or
night by any peace officer with or without probable cause, with or without a
5
warrant. Defendant waives the specific consent and warrant requirements
set forth in Penal Code sections 1546 and 1546.1.”
On January 30, 2026, defendant filed a motion requesting that the trial
court reconsider and vacate its imposition of the search condition. The People
opposed the motion. The trial court denied the motion for reconsideration,
finding that it had the discretion to impose a search condition to ensure
defendant complied with his mental health treatment and for protection of
the public in light of defendant’s lengthy criminal history.
Defendant filed this petition for writ of mandate to compel the trial
court to vacate the search condition imposed as part of defendant’s mental
health diversion order. We requested briefing. After consideration of the
petition, the informal oppositions filed by the Attorney General and the
Marin County District Attorney, and defendant’s reply, we issued an order to
show cause to consider the issue of first impression raised by the petition.
(See Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133, fn. 4.) The
Attorney General and the District Attorney filed returns, and defendant filed
a traverse.
DISCUSSION
Defendant contends section 1001.36 does not authorize the trial court
to impose a search condition in granting a request for mental health
diversion. He claims section 1001.36 requires a defendant to waive the right
to a speedy trial but does not require a waiver of other constitutional rights.2
2 Defendant acknowledges that section 1001.36, subdivision (m)
provides specific procedures under which the prosecution may request an
order prohibiting defendants from owning or possessing a firearm until they
successfully complete diversion. The prosecution must prove by clear and
convincing evidence that the defendant poses a significant danger of causing
personal injury to him- or herself or others by having possession of a firearm
and that the firearm prohibition is necessary to prevent personal injury
6
According to defendant, the search condition is unauthorized and must be
vacated. We begin with a discussion of the mental health diversion statute.
I. Mental Health Diversion
In 2018, the Legislature enacted the mental health diversion statute.
(Stats. 2018, ch. 34, § 24.) The stated purpose of the statute “is to promote all
of the following: [¶] (a) Increased diversion of individuals with mental
disorders to mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety. [¶] (b) Allowing local discretion
and flexibility for counties in the development and implementation of
diversion for individuals with mental disorders across a continuum of care
settings. [¶] (c) Providing diversion that meets the unique mental health
treatment and support needs of individuals with mental disorders.”
(§ 1001.35, subds. (a)–(c).) A trial court “may, in its discretion,” grant
diversion to eligible defendants whom it finds to be suitable for diversion,
under specified statutory criteria. (§ 1001.36, subd. (a).)
Section 1001.36, subdivision (f) defines pretrial diversion as
“the postponement of prosecution, either temporarily or permanently, at any
point in the judicial process from the point at which the accused is charged
until adjudication, to allow the defendant to undergo mental health
treatment . . . .” The statute applies to the majority of misdemeanor and
felony offenses, only excepting murder, voluntary manslaughter, child
“because less restrictive alternatives either have been tried and found to be
ineffective or are inadequate or inappropriate for the circumstances of the
defendant.” (§ 1001.36, subd. (m)(2).) In this case, the trial court’s diversion
order imposes a firearm prohibition. However, defendant’s petition does not
contest the firearm prohibition. Thus, our opinion does not consider the
propriety of the firearm prohibition imposed by the trial court.
7
molestation, rape, sexual assault, and use or possession of weapons of mass
destruction. (§ 1001.36, subds. (a), (d).)
A defendant is eligible for diversion if (1) he or she has been diagnosed
with a mental disorder “identified in the most recent edition of the Diagnostic
and Statistical Manual of Mental Disorders,” including posttraumatic stress
disorder (but excluding antisocial personality disorder and pedophilia), and
(2) the defendant’s mental disorder was a significant factor in the commission
of the charged offense. (§ 1001.36, subd. (b)(1)–(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).)
If a defendant satisfies the eligibility requirements, the court then
considers whether defendant is suitable for pretrial diversion. Section
1001.36, subdivision (c) states a defendant is suitable for diversion if “(1) In
the opinion of a qualified mental health expert, the defendant’s symptoms of
the mental disorder causing, contributing to, or motivating the criminal
behavior would respond to mental health treatment. [¶] (2) The defendant
consents to diversion and waives the defendant’s right to a speedy trial . . . .
[¶] (3) The defendant agrees to comply with treatment as a condition of
diversion . . . . [¶] (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. 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,
8
the current charged offense, and any other factors that the court deems
appropriate.”3
Even if the trial court finds a defendant eligible and suitable for
diversion, it retains discretion to deny diversion. (Sarmiento v. Superior
Court (2024) 98 Cal.App.5th 882, 892.) “[T]his ‘residual’ discretion must be
exercised ‘ “consistent with the principles and purpose of the governing law.” ’
[Citations.] That purpose includes a strong legislative preference for
treatment of mental health disorders because of the benefits of such
treatment to both the offending individual and the community.” (Id. at pp.
892–893.)
The period of diversion is limited to no longer than two years for
defendants charged with a felony. (§ 1001.36, subd. (f)(1)(C).) If a defendant
performs unsatisfactorily in the treatment program, or is charged with a new
crime, the trial court may reinstate criminal proceedings. (§ 1001.36,
subd. (g).) If a defendant performs satisfactorily in diversion, then the court
shall dismiss the criminal charges at the end of the period of diversion and
the arrest upon which the diversion was based shall be deemed never to have
occurred. (§ 1001.36, subd. (h).) “A court may conclude that the defendant
has performed satisfactorily if the defendant has substantially complied with
the requirements of diversion, has avoided significant new violations of law
3 Section 1170.18, subdivision (c) defines “ ‘unreasonable risk of danger
to public safety’ ” as “an unreasonable risk that the petitioner will commit a
new violent felony within the meaning of [section 667, subdivision
(e)(2)(C)(iv)].” Such felonies, known as “ ‘super strikes,’ ” are “sexually violent
offenses, oral copulation with a child under 14, lewd or lascivious act with a
child under 14, homicide, solicitation to commit murder, assault with a
machine gun on a peace officer, possession of a weapon of mass destruction,
and any serious or violent felony punishable by life imprisonment or
death . . . .” (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149.)
9
unrelated to the defendant’s mental health condition, and has a plan in place
for long-term mental health care.” (Ibid.)
II. Trial Court’s Authority to Impose Search Condition
Whether a trial court granting a defendant’s request for mental health
diversion may impose a search condition on the defendant during the
diversionary period is an issue of first impression. Defendant argues the trial
court abused its discretion by imposing the search condition because section
1001.36 does not authorize it to do so. Whether the trial court’s action is
authorized by statute is a question of law which we review de novo. (People
v. Braden (2023) 14 Cal.5th 791, 804.)
“ ‘When construing a statute, we must “ascertain the intent of the
Legislature so as to effectuate the purpose of the law.” ’ [Citations.] ‘[W]e
begin with the words of a statute and give these words their ordinary
meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous,
then we need go no further.’ [Citation.] If, however, the language supports
more than one reasonable construction, we may consider ‘a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be
remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is
a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction
that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute,
and avoid an interpretation that would lead to absurd consequences.’ ”
(People v. Sinohui (2002) 28 Cal.4th 205, 211–212.)
Sections 1001.35 and 1001.36 do not expressly refer to the imposition of
rehabilitative conditions during the diversionary period, other than
compliance with the treatment plan. Section 1001.36 provides four criteria
10
for the trial court to consider in determining whether a defendant is suitable
for diversion. (§ 1001.36, subd. (c).) The first is that a mental health expert
opines that the defendant’s “symptoms of the mental health disorder causing,
contributing to, or motivating the criminal behavior would respond to mental
health treatment.” (§ 1001.36, subd. (c)(1).) The second and third criteria are
that defendant must “consent[] to diversion and waive[] the . . . right to a
speedy trial” and must also “agree[] to comply with treatment as a condition
of diversion . . . .” (§ 1001.36, subd. (c)(2)–(3).) The final suitability factor is
that the defendant will not pose an unreasonable risk of danger to public
safety, as defined by section 1170.18, i.e., defendant is not likely to commit a
super-strike offense, if treated in the community. (People v. Moine (2021) 62
Cal.App.5th 440, 449–450; § 1001.36, subd. (c)(4).)
Defendant argues section 1001.36 provides for a waiver of only the
right to a speedy trial and Second Amendment rights in certain
circumstances. This, he claims, makes clear that there is no statutory
authority for a trial court to impose a search condition, which requires an
additional constitutional waiver. We find that defendant’s position
improperly focuses only on parts of the statute in isolation and, thus, reads
the statute too narrowly without consideration of the context of the entire
statutory scheme. (People v. Braden, supra, 14 Cal.5th at p. 804.)
Consideration of the complete statutory language of sections 1001.35
and 1001.36 reveals the breadth of the trial court’s discretion to decide
whether to grant diversion, and the absence of any prohibition on the trial
court’s ability to impose reasonable rehabilitative conditions during the
period of diversion. Section 1001.36, subdivision (a) states “the court may, in
its discretion, and after considering the positions of the defense and
prosecution, grant pretrial diversion to a defendant” if the defendant satisfies
11
the eligibility requirements and the court determines defendant is suitable
for diversion. (§ 1001.36, subd. (a), italics added.) Subdivision (f) states
diversion is “subject to” the following: “The court is satisfied that the
recommended . . . program of mental health treatment will meet the
specialized mental health treatment needs of the defendant,” and “[b]efore
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)(i)–(ii).)
Subdivision (h) provides that “[a] court may conclude that the defendant has
performed satisfactorily if the defendant has substantially complied with the
requirements of diversion, has avoided significant new violations of law
unrelated to the defendant’s mental health condition, and has a plan in place
for long-term mental health care.” (§ 1001.36, subd. (h), italics added.)
Subdivision (k) generally prohibits the use in other proceedings of a finding
that a defendant suffers from a mental disorder and progress reports
regarding defendant’s treatment, except that “when determining whether to
exercise its discretion to grant diversion under this section, a court may
consider previous records of participation in diversion under this section.”
(§ 1001.36, subd. (k).)
These various provisions, when read together, indicate that the trial
court’s discretion whether to grant diversion includes consideration of
whether the proposed treatment plan is appropriate to meet the individual
needs of the defendant and will protect the community. Further, in
determining whether a defendant has successfully completed diversion such
that the case shall be dismissed, the trial court is to consider whether the
defendant has “substantially complied with the requirements of
diversion . . . .” (§ 1001.36, subd. (h).)
12
As discussed ante, section 1001.35 also refers to a court’s discretion and
the necessity for flexibility in implementing diversion. It explains the
purpose of the statute includes increasing diversion of individuals with
mental health disorders “while protecting public safety,” “[a]llowing local
discretion and flexibility for counties in the development and implementation
of diversion,” and “[p]roviding diversion that meets the unique mental health
treatment and support needs of individuals with mental disorders.”
(§ 1001.35.)
When read as a whole, sections 1001.35 and 1001.36 emphasize the
legislative goal of broadly increasing mental health diversion as an
alternative to criminal proceedings. (Flannery v. Prentice (2001) 26 Cal.4th
572, 578 [in interpreting a statute, “we do not consider the statutory
language in isolation” but, “[r]ather, we look to ‘the entire substance of the
statute . . . in order to determine the scope and purpose of the provision’ ”].)
The statute applies to the majority of crimes and to nearly all recognized
mental health disorders, excepting only antisocial personality disorder and
pedophilia. (§ 1001.36, subd. (b)(1).) At the same time, both code sections
emphasize the trial court’s discretion in deciding whether to grant diversion.
(§§ 1001.35, subd. (b), 1001.36, subds. (a), (f), (h), (k).) Even when a
defendant meets the eligibility and suitability requirements, the court “may
still exercise its discretion to deny mental health diversion . . . .” (People v.
Qualkinbush (2022) 79 Cal.App.5th 879, 888.) Courts have referred to the
trial court’s discretion to deny diversion even when a defendant meets all the
express statutory requirements as “ ‘residual’ ” discretion and have held that
it must be exercised “ ‘ “consistent with the principles and purpose of the
governing law.” ’ ” (Sarmiento v. Superior Court, supra, 98 Cal.App.5th at pp.
892–893.) The statutory language thus reflects a legislative intent of broad
13
application of mental health diversion in many, varied circumstances by
tailoring treatment plans to meet the particular needs of individual
defendants while, at the same time, considering the interests of the
community. (§ 1001.36, subds. (b), (c) & (f)(1)(A).) Imposing reasonable
rehabilitative conditions during the period of diversion is consistent with the
statute’s stated purposes of increasing mental health diversion while
protecting the public and allowing for discretion and flexibility to meet a
defendant’s unique needs. (§ 1001.35.) However, nothing in the statute
expressly states a trial court may impose reasonable rehabilitative conditions
during the diversionary period. To resolve whether such conditions are
permissible, we next turn to the legislative history.
The author of Senate Bill No. 215 (2017–2018 Reg. Sess.) explained
that “under current law, the trial courts have little ability to rehabilitate
mentally ill Californians charged with even minor criminal offenses, without
first convicting them of the underlying offense . . . .” (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended
Jan. 3, 2018, p. 5.) The author further explained that the proposed bill gives
trial courts the discretion to offer diversion to defendants suffering from
mental illness and that, “[i]n essence, if appropriate, a court may (but is not
required to) impose the same rehabilitative probationary conditions on a
defendant it would have imposed had the defendant been convicted (including
that the defendant comply with a mental health treatment plan, obey all laws
and make restitution to any victims), with the added incentive that
successful completion of diversion would result in dismissal of the criminal
case, without the permanent detriment of a criminal record.” (Ibid., italics
added.) Subsequent analyses of the Assembly and Senate Committees on
Public Safety include the same statement. (See Assem. Com. on Public
14
Safety, Analysis of Sen. Bill No. 215 (2017–2018 Reg. Sess.) as amended
Jan. 25, 2018, p. 5; Sen. Com. on Public Safety, 3d reading analysis of Sen.
Bill No. 215 (2017–2018 Reg. Sess.) as amended Aug. 6, 2018, p. 3; Sen. Com.
on Public Safety, 3d reading analysis of Sen. Bill No. 215 (2017–2018 Reg.
Sess.) as amended Aug. 23, 2018, p. 3.)
In People v. Braden, supra, 14 Cal.5th 791, 825, our Supreme Court
held that a defendant may request mental health diversion before jeopardy
attaches at trial or before entry of a plea of guilty, whichever occurs first.
In deciding the question of the timeliness of a diversion request, Braden
considered the legislative history and explained that the mental health
diversion statute was intended to remedy the trial court’s inability to order
treatment prior to a defendant’s conviction and placement on probation.
(Id. at p. 821.) It quoted the author’s statement in support of Senate Bill No.
215 (2017–2018 Reg. Sess.) explaining that a court may impose “ ‘ “the same
rehabilitative probationary conditions on a defendant it would have imposed
had the defendant been convicted . . . .” ’ ” (People v. Braden, at p. 822, citing
Assem. Com. on Public Safety, Analysis of Sen. Bill No. 215, supra, at p. 5,
italics omitted.)
The author of the bill also explained that “[t]he permissive nature of
this bill would provide judges the discretion to admit or deny a defendant
with specified mental health issues to the diversion program. If a judge feels
that a defendant’s participation in a diversion program is not appropriate
from the standpoint of public safety, or any other reason, the judge can
prohibit the defendant from participating in diversion . . . . A judge would
maintain discretion to fashion appropriate conditions for participation in, and
successful completion of, diversion. Courts would have the discretion to tailor
the conditions of the diversion to meet the needs of the individual defendant
15
and the community based on the circumstances of each case.” (Assem. Com.
on Public Safety, Analysis of Sen. Bill No. 215, supra, p. 7, italics added.)
Defendant does not directly address the legislative history relied upon
by the People. Although he acknowledges People v. Braden’s consideration of
the statement of the bill’s author regarding “rehabilitative probationary
conditions,” he appears to argue that because Braden did not consider the
issue raised in this petition, the People’s reliance on the legislative history
cited by Braden is misplaced. He also harks back to his argument that the
plain meaning of section 1001.36 requires only that defendant agree to
comply with the treatment plan and waive his speedy trial right and,
therefore, the legislative history need not be considered. As explained ante,
we believe defendant improperly focuses only on a portion of the suitability
requirements in isolation instead of considering the statutory language as a
whole and the context of the statutory scheme.
Our review of the legislative history, the statutory language, and the
context of the mental health diversion statutes leads us to conclude the
Legislature intended to permit courts, in exercising their discretion to grant
diversion, to impose tailored, reasonable rehabilitative conditions on diverted
defendants in appropriate cases to meet the needs of both the defendants and
the community. Allowing trial courts to grant diversion in a case such as
defendant’s, while imposing reasonably related conditions during the
diversionary period, rather than simply denying diversion furthers the
statutory goals of providing mental health treatment to qualifying defendants
and protecting public safety.4 Here, the trial court acted within its discretion
4 We recognize that one of the suitability requirements is a finding that
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)(4).) This is a more narrow definition of public safety risk, requiring
16
when it granted mental health diversion to defendant with the added
condition that he submit to searches during the diversionary period. Based
on defendant’s decades-long criminal record for similar crimes, the search
condition was reasonable, and defendant does not contend otherwise.
(People v. Lent (1975) 15 Cal.3d 481, 486.)
III. Previous misdemeanor drug diversion case law is inapplicable
to diversion under section 1001.36.
Defendant relies upon prior cases that hold there is no statutory
authority for a court to impose search conditions on defendants under
statutes providing for misdemeanor drug diversion and informal supervision
of juvenile offenders. As we explain, we agree with the People that the cases
a finding that there is not a likelihood defendant will commit a violent felony
listed in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) Thus, as
a trial court may only find a defendant suitable for diversion if it first
determines defendant is not likely to commit a violent felony, as defined.
(§ 1001.36, subd. (c).) Appellate courts have held that trial courts may not
reject a request for diversion based on an alternative meaning of public safety
under the “guise” of exercising its “residual” discretion. (E.g., Sarmiento v.
Superior Court, supra, 98 Cal.App.5th at p. 896; People v. Moine, supra,
62 Cal.App.5th at pp. 450–451.) Here, the trial court did not deny diversion
based upon a public safety risk, and we express no opinion on the issue raised
in Sarmiento and Moine. The trial court’s grant of diversion with the
accompanying search condition was based, in part, on the trial court’s stated
concern for the protection of the public considering defendant’s lengthy
criminal history. Defendant’s petition does not argue that the trial court
improperly considered the community’s interest or improperly relied upon an
alternative definition of public safety. We note that section 1001.36,
subdivision (f)(1)(A)(ii) expressly states that before approving a proposed
treatment plan, “the court shall consider . . . the interests of the community,”
and section 1001.35, subdivision (a) states the purpose of mental health
diversion is to “[increase] diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal justice system
while protecting public safety.” Accordingly, the trial court properly
considered the community’s interest when it granted diversion with a search
condition.
17
are distinguishable because they are based on a narrower type of diversion
that applies to low-level drug offenses or first-time juvenile offenders.
The first in the line of cases relied upon by defendant is Morse v.
Municipal Court (1974) 13 Cal.3d 149, in which a defendant charged with
possession of marijuana, who was eligible to consent to diversion under
section 1000 et seq. in lieu of criminal prosecution, instead pleaded not guilty
and moved to suppress the evidence against him. (Morse, at p. 154.) After
the defendant’s suppression motion was denied, he sought to consent to
diversion. The trial court denied diversion, ruling the defendant elected to
proceed with criminal prosecution when he opted to move for pretrial
suppression. (Ibid.) The issue before the Supreme Court was the “narrow
one of how far into the criminal process a defendant may go before he can no
longer be afforded the right to consent to consideration for diversion under
section 1000.1 . . . .” (Id. at p. 155.) The Supreme Court found that the plain
meaning of section 1000.1 made defendant’s consent to consideration for
diversion contingent upon a simultaneous waiver of speedy trial rights and
that defendant’s consent to consideration for diversion should be tendered
prior to commencement of trial. (Morse, at p. 156.) The statutory language
did not specify a particular point during the pretrial period beyond which
consent to diversion could be tendered. (Id. at p. 157.) The Supreme Court
considered the legislative purpose of section 1000.1 diversion and found that
requiring a defendant to defer a motion to suppress was inconsistent with the
legislative purpose of encouraging the broadest possible participation in drug
treatment programs. (Morse, at p. 158.) It reasoned that section 1000.1
“requires waiver of the constitutional and statutory right to a speedy trial as
a condition of eligibility but does not refer to waiver of any other
constitutional right or procedural step. Hence, the exclusion of the deferral of
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a motion to suppress as a condition of diversion is negatively implied.”
(Morse, at p. 159.) It held that defendants may consent to diversion and
waive their speedy trial rights at any time prior to the commencement of trial
and that defendants may bring pretrial motions prior to consenting to
consideration for diversion. (Id. at p. 160.)
Morse was relied on a year later in Frederick v. Justice Court (1975)
47 Cal.App.3d 687, which directly addressed the question of whether a court
may impose a search condition in ordering diversion under section 1000 for a
misdemeanor charge of possession of amphetamine. (Frederick, at pp. 688–
690.) The Court of Appeal held that the imposition of a search condition
during the period of diversion is neither expressly nor impliedly authorized
by the statute. (Id. at pp. 691–692.) It explained that the diversion statutes
at issue required a defendant to waive the right to a speedy trial, and no
other constitutional right. (Id. at p. 690.) It further found there was no
compelling necessity to justify the infringement of the constitutional rights of
a defendant eligible for diversion because although the purpose of the
diversion program is rehabilitation, eligible defendants are not those “ ‘deeply
involved with drugs,’ but rather ‘the experimental or tentative user.’ ” (Id. at
p. 691.) Accordingly, the Court of Appeal concluded, the “lack of statutory
authorization and the lack as well of a compelling necessity therefor placed
the imposition of this condition of an express waiver of a constitutional right
beyond the court’s powers in a proceeding that is wholly and exclusively
statutory.” (Id. at p. 692.)
Defendant also relies upon Derick B. v. Superior Court (2009)
180 Cal.App.4th 295, which held the trial court had no authority to impose a
search condition on a juvenile it found eligible for informal supervision under
Welfare and Institutions Code section 654.2. (Derick B., at p. 306.) Derick B.
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explained that the informal supervision program applied only to first-time
minor offenders who were alleged to have committed no more than
misdemeanors or infractions. (Id. at p. 304.) The relevant statutes did not
specifically include a Fourth Amendment waiver as a condition of informal
supervision (Derick B., at p. 305), whereas the deferred entry of judgment
program under Welfare and Institutions Code section 790, which applied to
“slightly more seasoned minor offender[s],” did specifically provide for a
mandated Fourth Amendment waiver as a condition of granting deferred
entry of judgment. (Derick B., at p. 305.) Derick B. found no legislative
authority for imposing a search condition when a minor is granted informal
supervision under Welfare and Institutions Code section 654 or 654.2.
(Derick B., at p. 305.) It analogized the informal supervision program for
minors to adult diversion under Penal Code section 1000, and it found they
are each “ ‘a creature of statute,’ ” neither of which expressly includes
authority for imposing a search condition. (Derick B., at p. 306.)
The cases on which defendant relies involve diversion or informal
supervision under different statutory schemes that apply to a much more
limited group of individuals than the mental health diversion statutes.
Misdemeanor drug diversion under section 1000 applies to certain
individuals charged with simple possession of drugs for personal use or being
under the influence of a controlled substance. (§ 1000, subd. (a).) Diversion
under section 1000 is further limited to defendants who have no prior felony
convictions within the last five years (§ 1000, subd. (a)(4)) and cases in which
the offense charged did not involve a crime of violence or threatened violence
and there is no evidence of a contemporaneous violation relating to narcotics
or restricted dangerous drugs (§ 1000, subd. (a)(2)–(3)). As described by the
Frederick court, an eligible defendant is not “ ‘deeply involved with drugs’ ”
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but is an “ ‘experimental or tentative user.’ ” (Frederick v. Justice Court,
supra, 47 Cal.App.3d at p. 691.) The informal supervision program for
juvenile offenders at issue in Derick B. applies to first-time offenders who
have committed misdemeanors or infractions, and generally precludes minors
who have previously been on informal supervision, who have had a prior
wardship judgment, and who are over 14 years of age and alleged to have
committed a felony. (Derick B., supra, 180 Cal.App.4th at p. 304.)
In contrast, the mental health diversion statute may broadly apply to
defendants charged with a wide array of crimes (excluding only murder,
voluntary manslaughter, child molestation, rape, sexual assault, and use or
possession of weapons of mass destruction) and who suffer from a wide range
of mental health disorders (excluding only antisocial personality disorder and
pedophilia). (§ 1001.36, subds. (b)(1), (d)(1)–(8).) Nor is mental health
diversion limited to first-time offenders. (§ 1001.36, subds. (b) & (c).)
Nothing in the statute excludes defendants, such as the defendant here, with
extensive criminal histories. (Ibid.) Defendant’s cited cases are also
distinguishable because none of them references legislative history
specifically stating that “a court may . . . impose the same rehabilitative
probationary conditions on a defendant that it would have imposed had the
defendant been convicted . . . .” (Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 215, supra, at p. 5.)
In sum, we find that a trial court may, in exercising its discretion to
grant diversion, impose reasonable “rehabilitative probationary conditions”
on defendant during the diversionary period. Our holding is consistent with
the language of sections 1001.35 and 1001.36, which gives the trial court
discretion to grant mental health diversion and explains the goals of tailoring
diversion to meet the unique needs of each defendant, maintaining flexibility,
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and protecting public safety while the defendant is treated in the community.
(§§ 1001.35, subds. (a)–(c), 1001.36, subd. (a).) It is also consistent with the
multiple references in the legislative analyses of the bill to the trial court’s
discretion to impose “rehabilitative probationary conditions.” (See pp. 14–15,
ante.) Defendant has 19 prior convictions, mostly for theft-related offenses
similar to the charged offense. The record discloses the trial court, despite
stated reservations about granting diversion, reasonably considered
defendant’s lengthy criminal history before deciding to grant diversion with a
search condition. Defendant does not argue that the search condition was
unreasonable under the circumstances. Similar search conditions imposed as
probation conditions have been upheld as having a valid rehabilitative
purpose. (See People v. Balestra (1999) 76 Cal.App.4th 57, 67–68.) Here, the
search condition was reasonably related to the charged offense of burglary,
particularly given defendant’s decades-long history of similar crimes. (People
v. Lent, supra, 15 Cal.3d at p. 486.)
DISPOSITION
The petition for writ of mandate is denied.
Jackson, P. J.
WE CONCUR:
Simons, J.
Chou, J.
A175757/Thompson v. Superior Court
22
A175757/Thompson v. Superior Court
Trial Court: Superior Court of the County of Marin
Trial Judge: Kelly Simmons
Counsel: David Sutton, Marin County Public Defender, and Jeff
Mitchell, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Charles C. Ragland and
Jeffrey M. Laurence, Assistant Attorneys General,
Bridget Billeter and Dorian Jung, Deputy Attorneys
General, for Real Party in Interest.
Lori E. Frugoli, Marin County District Attorney, Dori K.
Ahana, Shari A. Goldman and Daniel L. Madow,
Deputy District Attorneys, for Real Party in
Interest.
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