Filed 7/27/26 P. v. Pena CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B349486

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 25CMCF00443)
v.

RUDY ALBERTO PENA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector E. Gutierrez and Patrick Connolly,
Judges. Affirmed.
Sarah S. Sanger, 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, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
 Rudy Alberto Pena pleaded no contest to one count of
stalking with a temporary restraining order in effect and one
count of attempting to dissuade a witness. The trial court
sentenced him to four years in prison. Pena obtained a certificate
of probable cause and appealed from the judgment. He contends
the trial court abused its discretion by denying his pre-plea
motion for mental health diversion, pursuant to Penal Code1
section 1001.36. We affirm.

BACKGROUND
A. The Charges
A first amended information charged 37-year-old Pena with
four felony counts of violation of a domestic violence court order
with a prior conviction and act of violence (§ 166, subd. (c)(1);
counts 1, 6, 9 & 12), misdemeanor battery on a spouse (§ 243,
subd. (e)(1); count 2), felony stalking with a temporary
restraining order in effect (§ 646.9, subd. (a); count 3),
misdemeanor vandalism under $400 by damage or destruction of
property (§ 594, subd. (a); count 4), three misdemeanor counts of
contempt of court (§ 166, subd. (c)(1); counts 5, 8 & 11), and three
felony counts of attempting to dissuade a witness (§ 136.1, subd.
(a)(2); counts 7, 10 & 13). The first amended information also
alleged five factors in aggravation under California Rules of
Court, rule 4.421, including that in committing all of the charged
offenses, Pena engaged in violent conduct that indicates a serious
danger to society. (Cal. Rules of Court, rule 4.421(b)(1).)

1 Undesignated statutory references are to the Penal Code.

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B. Factual Background
We take our account of the circumstances of the charged
offenses from the transcript of the April 1, 2025 preliminary
hearing, as the parties did in their appellate briefing. The victim
of the offenses, Pena’s wife Myra J., testified to the following.
Pena and Myra had been married for approximately 13
years and have three children, who were then 12 years of age and
younger. Between May 2015 and December 2021, five court
orders were issued protecting Myra from Pena. One of these
orders, issued in 2017, is a 10-year protective order that expires
in 2027.
On or about November 11, 2024, Pena was released from
custody after being “incarcerated for a while.” Two days later, on
November 13, 2024, he was in Myra’s home, when he became
“aggressive,” slapped her face, and told her it was “a wake up
call.” The children were present but in another room. Fearing
for her safety and wanting to protect her children, Myra left
home with the children and went to stay with her mother. After
November 13, 2024, Pena did not have permission to be in Myra’s
home.
On or about November 16, 2024, Myra’s landlord called her
and told her he was at her home to fix a broken window, and
there was someone inside. Myra contacted the police. When she
arrived at her home, she observed officers removing Pena from
the residence.
On November 25, 2024, Myra’s landlord phoned her again
and told her that someone was breaking a window at her home.
When Myra arrived, Pena was outside her home in a police car,
handcuffed.

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 One of the police officers who responded to Myra’s home on
November 25, 2024, testified at the preliminary hearing. He
stated that he located Pena behind the residence and took him
into custody. The officer watched a surveillance video and
observed Pena swing the metal portion of a water hose at a
window at the rear of Myra’s residence, breaking the window.
Myra further testified that on December 14, 2024, she was
with Pena and their children in her home. She lit some incense,
and Pena opened a door to the outside. One of the children closed
the door because she was cold. Pena entered the room where
Myra and the children were, and he slapped Myra’s face in front
of the children. He opened the door and stated that he wanted it
to remain open.
Myra testified that the above-described events occurred
when Pena was under the influence. She indicated that he used
methamphetamine. She stated that “when he is under the
influence,” he “has something against her personally,” and she
feared for her safety.
Between January and March 2025, Pena called Myra from
jail numerous times. During Myra’s testimony, the prosecutor
played audio recordings of seven calls. In some of them, Pena
told Myra not to testify. During one call, he told her that he
would kill her if she cheated on him. This “worried” her and she
thought about the possibility of him following through on the
threat. On another call, he said he “was going to fuck her up
when he got out of jail,” and she understood that to mean that he
“was going to hurt” her.
In holding Pena to answer for the charges, the court
commented that the evidence showed Myra was “terrified” of
Pena.

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C. Motion for Mental Health Diversion
1. Moving papers
In September 2025, Pena filed a motion for mental health
diversion pursuant to section 1001.36. In the factual background
section of the motion, Pena indicated that between January and
March 2025, he called Myra from jail 86 times.
Pena stated he was statutorily eligible and suitable for
diversion, based primarily on the information contained in an
attached report describing his August 2025 psychological
evaluation by a clinical psychologist. The psychologist reported
that Pena “was argumentative and defensive throughout the
evaluation. He was evasive when discussing details of the
current charges and tended to minimize his behavior and
externalize responsibility for his criminal actions. His mood was
irritable and angry. . . . He demonstrated poor insight into his
legal situation and the impact of his substance abuse on his
interpersonal relationships and overall level of functioning.”
The psychologist summarized Pena’s criminal history, and
described one incident in detail, as follows: “In 2021, the
defendant ripped open the bedroom window screen of the victim’s
home and entered. He ran into the living room where the victim
and their three children were located. He grabbed all three
children and ran out the front door. The victim ran after him,
but the defendant pointed a stick at her and threatened to hit
her. The defendant’s mother was able to grab two of the children.
He, then, ran into the street with the remaining child, weaving
between cars traveling at high rates of speed. The victim called
the police, who were able to locate and detain the defendant
shortly thereafter. He appeared to be under the influence of
methamphetamine (sweating, rapid unintelligible speech,

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restlessness), which he spontaneously admitted to. When
queried about this offense, the defendant stated: ‘I walked the
kid barefoot.’ ”
The psychologist stated Pena had the following diagnoses
identified in the DSM-V: severe amphetamine use disorder and
severe alcohol use disorder. (See § 1001.36, subd. (b)(1)
[eligibility for mental health diversion requires that the
defendant “has been diagnosed with a mental disorder as
identified in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders [DSM]”].) The
psychologist reported that Pena began abusing alcohol at age 13,
and he began abusing methamphetamine at age 14. In 2021, he
participated in drug rehabilitation treatment twice, for three
months each time. “He relapsed within one month of leaving one
program and within one day of leaving the other program.”
When the psychologist asked why he relapsed, he stated, “ ‘I
needed more tools.’ ”
The psychologist concluded that Pena’s “drug use has
contributed to legal problems, family estrangement,
unemployment, and housing instability, and he is likely self-
medicating underlying psychiatric problems.” The psychologist
further concluded: “The combination of the defendant’s executive
dysfunction [resulting from adolescent drug and alcohol use],
polysubstance abuse, and inconsistent communication by the
victim have likely been contributing factors to Mr. Pena’s
inability [to] behave in a rational manner, manifesting as
aggression, poor judgment, and challenges with impulse control.
He was under the influence of methamphetamine at the time of
the incidents and was cognitively aberrant, which led to his
behaviors in the instant offenses.” (See § 1001.36, subd. (b)(2)

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[eligibility for mental health diversion requires that the
“defendant’s mental disorder was a significant factor in the
commission of the charged offense”].)
Turning to Pena’s suitability for pretrial mental health
diversion, the psychologist addressed whether Pena’s mental
health needs would “respond to mental health treatment” (see
§ 1001.36, subd. (c)(1)) as follows: “Mr. Pena has a significant
criminal history and his actions in the instant offense occurred
because of his significant abuse of methamphetamine. The
defendant would benefit from at least nine months of consistent
supervised treatment given concerns for relapse potential,
lengthy history of housing and financial instability, interpersonal
difficulties, and behavioral escalation if the treatment is limited.
He does have some insight into his need for drug rehabilitation
treatment, albeit limited. Based on my clinical interview and the
information provided to me, it is recommended that he receive
ongoing psychological treatment in a dual diagnosis residential
treatment program under supervision with psychiatric
medication, if appropriate, for at least 90 days followed by
treatment at a sober living [facility] for an additional 180 days.
The defendant would also benefit from domestic violence classes.”
The psychologist concluded, “There is a likelihood, if placed in a
supportive environment with supervision and appropriate mental
health diagnosis and treatment, Mr. Pena may have success in
gaining sobriety, learn to regulate his emotions, and develop
appropriate life skills.”
Pena attached to the motion a letter from a provider,
confirming his eligibility for admission into a “3-month dual
diagnosis residential substance abuse treatment program, which
can be extended for an additional 3-6 months” at a specified sober

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living facility. The program includes participation “in group
counseling sessions that provide alcohol and drug education,
relapse prevention, coping skills, 12-step work, self-esteem
building, individual counseling sessions, 12-step meetings, and
random alcohol and drug testing.”
The final statutory suitability criterion addressed in the
psychologist’s report was whether Pena would “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).)
Under section 1170.18, subdivision (c), “ ‘unreasonable risk of
danger to public safety’ means an unreasonable risk that the
petitioner will commit a new violent felony within the meaning of
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667,” i.e., a “super strike” offense, including murder
and attempted murder. The psychologist’s analysis of this
criterion states in full: “It is unlikely that [Pena] will commit the
excluded offenses under mental health diversion. His prior
criminal history is primarily related to his drug use. The instant
offenses appear to be the result of his untreated mental health
and drug use.”
Pena addressed the remaining suitability criteria in his
motion, stating that he consented to diversion and would waive
his right to a speedy trial (§ 1001.36, subd. (c)(2)), and that he
agreed to comply with treatment as a condition of diversion
(§ 1001.36, subd. (c)(3)).
2. Opposition
The prosecution filed an opposition to the motion, which
described a history of domestic violence between Pena and Myra.
The prosecution referenced a January 2015 incident, which
resulted in a conviction of battery against a spouse (§ 243, subd.

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(e)(1)) and the issuance of the first protective order. According to
the prosecution, on that occasion, Pena grabbed Myra by her
hair, “forced her to the floor,” and “punched her in the back
multiple times” while she was “lying face-down.” The prosecution
also referenced a September 2017 incident, which resulted in a
conviction for violation of a protective order (§ 166, subd. (c)(1))
and the issuance of the 10-year protective order. According to the
prosecution, police officers responded to Myra’s home “after
receiving a call that [Pena] was hitting her.”
The prosecution argued Pena was unsuitable for mental
health diversion for two main reasons. First, the prosecution
asserted it did not appear Pena would be able to comply with any
treatment plan based on (1) his unsuccessful attempts at drug
rehabilitation treatment in 2021 and (2) his “lack of ability to
take accountability for his actions.” The prosecution argued that
Pena had “consistently violated criminal protective orders since
at least 2015 and shown he cannot follow the most basic court-
mandated restrictions.”
Second, the prosecution asserted Pena would pose an
unreasonable risk of danger to public safety if treated in the
community. The prosecution argued: “Defendant’s conduct in
this case, coupled with his criminal history, shows an escalation
in increasingly dangerous conduct. Defendant has repeatedly
violated domestic violence protective orders, engaged in violent
conduct, and verbally threatened [the] [v]ictim. Even after the
present case was filed, Defendant still continued to make
statements in jail indicating he will be violent in the future. This
pattern of violence and defiance shows he is a risk not only to the
victim in this case, but his children, and the public at large.”

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 The prosecution further argued that the “proposed mental
health treatment program is insufficient to provide for continued
public safety” for the following reasons: “Defendant has been
previously given the opportunity to engage in treatment
programs. He voluntarily left those programs and continued to
engage in violent conduct. Given that Defendant’s actions show a
consistent and rising level of violence and frequency, it is clear
that the proposed program would not account for Defendant
committing future violence.”
3. The court’s ruling
On September 22, 2025, the trial court held a hearing on
the motion. Neither party presented argument. The trial court
found Pena eligible for diversion, but not suitable.
The court listed the eligibility and suitability criteria it
needed to consider, noting among them that the court had “to be
satisfied that the defendant will not pose an unreasonable risk of
danger to public safety as defined in section 1170.1[8] if treated
in the community.”
The court commented that Pena had an “extensive criminal
history,” and provided a summary of that history for the record,
but “going back only until 2015.” As reflected in the court’s
summary and the probation report, between 2015 and 2024, Pena
was convicted of six misdemeanors and six felonies. Of his four
most recent convictions, three were felonies: an August 2019
conviction for burglary (§ 459), for which he was sentenced to five
years in prison; a November 2021 conviction for violation of a
protective order, within seven years of a prior conviction for the
same offense, and involving an act of violence or a credible threat
of violence (§ 166, subd. (c)(4)), for which he was placed on
probation and subsequently sentenced to three years in prison

10
after a probation violation; and a September 2022 conviction for
carrying a concealed dirk or dagger (§ 21310), for which he was
placed on probation and subsequently sentenced to three years in
prison after a probation violation.
After quoting portions of the psychologist’s report, the court
ruled as follows:
“I don’t find that Mr. Pena is a suitable candidate for
mental health diversion for many reasons. He has an extensive
criminal history that has resulted in multiple state prison
commitments. The expert’s own report stated that he was
uncooperative and minimized his conduct.
“Additionally, [defense counsel] has appended [to the
motion] as Exhibit B a proposed treatment program. The People
have raised concerns about the suitability of that program. The
court shares those.”
After quoting the psychologist’s treatment
recommendation, the court continued:
“The People brought to the court’s attention and the court
also noted that Mr. Pena previously was unsuccessful in receiving
treatment.
“The biggest issues that the court has are whether or not
Mr. Pena’s symptoms of mental disorder motivating the criminal
behavior would respond to mental health treatment.
“I’m aware of the language in the appellate opinions in
regards to an unreasonable risk of danger to public safety.
“On repeated occasions, according to the People, based on
what they have filed, Mr. Pena has contacted the victim in direct
violation of a stay-away order, assaulted her not on every single
occasion [sic]. And the People have brought to the court’s

11
attention that pending a trial he has contacted her by way of
telephone and urged her not to cooperate with court process.
“I don’t find him to be suitable within the spirit and the
meaning of [section] 1001.36. I think the record is quite clear his
extensive criminal history and the expert’s own statements in
regards to Mr. Pena during the evaluation process, minimizing
his behavior -- I don’t have confidence that he would follow
through with mental health diversion. So I’m respectfully
denying your motion, [defense counsel].”

D. No Contest Plea
On October 6, 2025, Pena pleaded no contest to one count of
stalking with a temporary restraining order in effect (count 3)
and one count of attempting to dissuade a witness (count 7). He
admitted the factor in aggravation set forth in California Rules of
Court, rule 4.421(a)(7) (the “defendant was convicted of other
crimes for which consecutive sentences could have been imposed
but for which concurrent sentences are being imposed”).
Under the terms of the plea negotiation, the trial court
sentenced Pena to the upper term of four years on count 3,
imposed a concurrent upper term of three years on count 7, and
dismissed the other counts. The court issued a new protective
order requiring Pena to refrain from contacting Myra, among
other things.
Pena filed a timely notice of appeal from the judgment,
stating he was challenging the denial of the motion for mental
health diversion. The trial court granted his request for a
certificate of probable cause.

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 DISCUSSION
Pena contends the trial court abused its discretion in
denying his motion for mental health diversion based on findings
that he would pose an unreasonable risk of danger to public
safety if treated in the community (§ 1001.36, subd. (c)(4)), and
that he did not show his symptoms would respond to mental
health treatment (§ 1001.36, subd. (c)(1)).

A. Legal Principles Regarding Diversion and Standard
of Review
Diversion under section 1001.36 “allows for the suspension
of criminal proceedings and potential dismissal of charges upon
successful completion of mental health treatment.” (Sarmiento v.
Superior Court of San Diego County (2024) 98 Cal.App.5th 882,
890 (Sarmiento).) One of the purposes of the legislation is
“[i]ncreased diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety.” (§ 1001.35, subd.
(a).)
“[M]ental health diversion requires trial court findings that
the defendant is both eligible for diversion and suitable for the
program. The criteria for each are specified in the statute.
(§ 1001.36, subds. (b) & (c).) Defendants are eligible if they have
been diagnosed with a recognized mental disorder that was a
significant factor in the commission of the criminal offense with
which they are charged. (Id., subd. (b).) They are suitable if:
(1) in the opinion of a qualified mental health expert, the
defendant’s mental disorder would respond to treatment; (2) the
defendant 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

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public safety’ as defined in sections 1170.18 and 667, subdivision
(e)(2)(C)(iv). (§ 1001.36, subd. (c).)” (Sarmiento, supra, 98
Cal.App.5th at p. 891.)
If “the defendant satisfies the eligibility requirements,” and
“the court determines that the defendant is suitable for [pretrial]
diversion,” the trial “court may, in its discretion, and after
considering the positions of the defense and prosecution, grant
pretrial diversion to [the] defendant.” (§ 1001.36, subd. (a).) The
court must exercise its discretion “consistent with express
statutory requirements and the underlying purposes of mental
health diversion . . . .” (Sarmiento, supra, 98 Cal.App.5th at pp.
895-896.) “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.”
(People v. Moine (2021) 62 Cal.App.5th 440, 449 (Moine).)

B. Substantial Evidence Supports the Finding that
Pena Posed an Unreasonable Risk of Danger to
Public Safety If Granted Diversion
Unreasonable risk of danger to public safety means “a
likelihood that if the defendant is granted diversion, [he or] she
will commit one of the ‘super strike’ violent felonies enumerated
in section 667, subdivision (e)(2)(C)(iv).” (Sarmiento, supra, 98
Cal.App.5th at p. 895; Moine, supra, 62 Cal.App.5th at pp. 449-
450.)2 “Those super strikes are murder, attempted murder,

2 The trial court did not expressly state on the record that it

found a likelihood that Pena would commit a super strike offense
if granted diversion. However, the court did expressly state that
in order to grant diversion, it had “to be satisfied” that Pena
would not pose an unreasonable risk of danger to public safety

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solicitation to commit murder, assault with a machine gun on a
police officer, possession of a weapon of mass destruction, any
serious or violent felony punishable by death or life
imprisonment, or any sexually violent offenses or sexual offense
committed against minors under the age of 14.” (People v.
Whitmill (2022) 86 Cal.App.5th 1138, 1150-1151 (Whitmill).)3
In deciding whether a defendant poses an unreasonable
risk of danger to public safety, 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).) We review a trial
court’s finding that a defendant poses an unreasonable risk of
danger to public safety for substantial evidence. (Sarmiento,
supra, 98 Cal.App.5th at p. 897; Whitmill, supra, 86 Cal.App.5th
at p. 1150.)
Pena had a history of perpetuating physical violence
against Myra. Five protective orders did not deter him from
continuing to batter her and break into her home. In a three-
month period after his arrest for the current offenses, he called
her 86 times from jail. During these calls, he threatened to “fuck
her up” when he got out of jail and kill her if she “cheated” on

“as defined in” section 1170.18, so the requisite finding was
implied.
3 “A defendant may not be placed into a diversion program”

if his or her current charged offense is one of a number of super
strike offenses specifically enumerated in the diversion statute.
(§ 1001.36, subd. (d).) Pena’s charged offenses did not so
disqualify him from the diversion program.

15
him. The psychologist described him as irritable and angry, he
“minimize[d] his behavior,” and had “poor insight.” These facts
constitute substantial evidence supporting a finding that there
was a likelihood Pena would commit a super strike offense (e.g.,
attempt to kill Myra) if granted diversion. Denial of the motion
on this basis was not an abuse of the court’s discretion.
Therefore, we need not review the court’s finding as to the
suitability of the proposed treatment plan.

DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED

M. KIM, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

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