Filed 7/31/26 P. v. Kaye CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C103625
Plaintiff and Respondent,
(Super. Ct. No. 24FE012332)
v.
DYLAN KAYE,
Defendant and Appellant.
Following a hearing on defendant Dylan Jacob Kaye’s application for pretrial
mental health diversion, the trial court denied the application, finding that although
defendant was eligible for diversion, he was not suitable because he posed an
unreasonable risk of danger to public safety if treated in the community. Defendant
subsequently pleaded no contest to inflicting corporal injury on a dating partner.
The trial court placed him on formal probation for four years with 90 days in jail
deemed served, and ordered him to participate in a batterer’s treatment program.
On appeal, defendant contends the trial court abused its discretion in denying
diversion. The People agree that the finding of an unreasonable risk of danger to public
safety is not supported by substantial evidence.
We agree there is insufficient evidence of an unreasonable risk that defendant will
commit a super strike offense if treated in the community. We will reverse the judgment
1
and remand the matter for a new hearing on defendant’s present suitability for mental
health diversion.
APPLICABLE LAW AND STANDARD OF REVIEW
Penal Code section 1001.361 gives a trial court discretion to grant pretrial
diversion for individuals with certain mental health disorders. (People v. Frahs
(2020) 9 Cal.5th 618, 626; People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147-1148.)
The trial court can postpone prosecution at any time in the judicial process, either
temporarily or permanently, to allow the defendant to undergo treatment. (Frahs,
at p. 626; Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133 (Vaughn).)
“The Legislature intended the mental health diversion program to apply as broadly
as possible.” (Whitmill, at p. 1149.)
A defendant must be both eligible and suitable for mental health diversion.
A defendant is eligible under section 1001.36, subdivision (b) if (1) the defendant
has been diagnosed by a qualified mental health expert with a mental disorder as
identified in the most recent edition of the DSM; and (2) the defendant’s mental disorder
was a significant factor in the commission of the charged offense. (See Vaughn, supra,
105 Cal.App.5th at p. 133; Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891
(Sarmiento).)
As for suitability, four circumstances must be satisfied: (1) in the opinion
of a qualified mental health expert the defendant’s mental disorder would respond to
treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy
trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if
treated in the community, the defendant will not pose an unreasonable risk of danger
1 Undesignated statutory references are to the Penal Code.
2
to public safety as defined in section 1170.18. (§ 1001.36, subd. (c)(1)-(4); Sarmiento,
supra, 98 Cal.App.5th at pp. 891-892.)
A defendant poses an unreasonable risk of danger to public safety under section
1170.18, subdivision (c), if there is an unreasonable risk that the defendant will commit
a new violent felony within the meaning of section 667, subdivision (e)(2)(C)(iv),
otherwise known as a super strike. The enumerated super strike offenses include murder,
attempted murder, solicitation to commit murder, assault with a machine gun on a police
officer, possession of a weapon of mass destruction, a serious or violent felony
punishable by death or life imprisonment, a sexually violent offense, or a sexual offense
committed against a minor under the age of 14. (Gomez v. Superior Court (2025)
113 Cal.App.5th 671, 679.)
We review a trial court’s decision to grant or deny a motion for mental health
diversion for abuse of discretion. (Vaughn, supra, 105 Cal.App.5th at p. 135.) A trial
court abuses its discretion when it makes an arbitrary decision by applying the wrong
legal standard or bases its decision on express or implied factual findings that are not
supported by substantial evidence. (Vaughn, at p. 135.)
BACKGROUND
In July 2024, D.L. reported to law enforcement that defendant, her boyfriend
of three months, physically attacked her. She said defendant threw her on a couch
and choked her. While being choked, D.L. thought she was going to die. She got away
and ran to her car, but defendant ran after her and began to choke her again. Defendant
said, “You’re mine. You’re supposed to love me. I will kill you. I will kill myself.”
A neighbor stopped the assault and D.L. drove away.
The People charged defendant with inflicting corporal injury on a dating partner,
resulting in a traumatic condition (§ 273.5, subd. (a)) and making criminal threats
(§ 422). Defendant entered a plea of not guilty and subsequently filed an application
for mental health diversion pursuant to section 1001.36. In support of his application,
3
defendant stated that he had been diagnosed with “alcohol-induced anxiety disorder
with moderate use disorder,” and was participating in outpatient treatment.
Defendant included his treatment plan with his mental health diversion
application. His therapist reported that defendant was “doing very well in an Intensive
Outpatient program.” Defendant was showing significant signs of recovery, remaining
sober, taking responsibility, and engaging in education. The therapist opined that
defendant could continue to be treated in the community.
In further support of his application, defendant asserted that his criminal history
was minimal and nonviolent. He had two nonviolent felony convictions (a second degree
burglary (§ 459) conviction in 2020 and a conviction for receiving stolen property (§ 496)
in 2021), and four misdemeanor convictions.
The People countered that defendant was not suitable for mental health diversion.
They argued defendant’s criminal history, along with the facts of the current offenses,
provided clear and convincing evidence that he posed an unreasonable risk of danger to
public safety if treated in the community.
At the hearing on defendant’s application, the trial court received a progress report
from Human Touch Behavioral Health, which included treatment updates for defendant
and a prospective treatment plan. It was reported that defendant had been in a treatment
program since August 2024 and was addressing both his substance use disorder and his
mental health. Defendant had not reoffended, he was maintaining a job and housing, and
he was compliant with medication.
Defense counsel argued that although defendant had been heavily intoxicated
at the time of the current offenses, his conduct was not part of a pattern of behavior
and he was receiving treatment specifically tailored to address his alcohol use disorder,
reduce his aggression, and increase his tolerance for difficult emotions. The treatment
plan was designed to stabilize his anxiety, increase his ability to function, and reduce
4
the risk to public safety. According to defense counsel, the treatment plan would
continue if diversion was granted.
The People acknowledged that defendant’s criminal history was not violent.
But in his current offenses he strangled the victim multiple times.
The trial court found defendant eligible for mental health diversion, but it then
found him not suitable for diversion because he posed an unreasonable risk of danger to
public safety if treated in the community. The trial court acknowledged that defendant
did not have a prior history of violence and that he may have been under the influence of
alcohol at the time of the offenses, but it found him likely to commit a super strike given
his repeated attempts to choke the victim while saying he would either kill her or himself.
The trial court denied defendant’s application for diversion.
Defendant subsequently pleaded no contest to inflicting corporal injury on a dating
partner. (§ 273.5, subd. (a).) Consistent with the plea agreement, the trial court placed
him on formal probation for four years with 90 days in jail deemed served, and ordered
him to participate in a batterer’s treatment program. The remaining charges were
dismissed. Defendant obtained a certificate of probable cause.
DISCUSSION
Defendant contends the trial court abused its discretion in denying diversion.
Specifically, he argues there is no substantial evidence he would commit a super strike
if treated in the community. The People agree there is insufficient evidence to support
the trial court’s finding of an unreasonable risk of danger to public safety.
There is no evidence defendant had been previously charged with a super strike
offense, and his current offense is not a super strike. Defendant’s criminal history
consists of two nonviolent felonies and four misdemeanor offenses. At the time of the
hearing on his application, defendant was doing well in an outpatient program. He had
successfully engaged in a treatment program for six months, he was maintaining housing
and a job, he had not reoffended, and his treatment provider recommended defendant
5
continue treatment in the community. On this record, there is insufficient evidence
to support a finding of an unreasonable risk that defendant will commit a super strike
offense if treated in the community.
DISPOSITION
The judgment is reversed and the matter remanded. On remand, the trial court
is directed to conduct a new hearing on defendant’s present suitability for diversion based
solely on evidence of circumstances that have changed since defendant’s hearing on
February 21, 2025. Should there be no evidence of changed circumstances rendering
defendant unsuitable for diversion as defined by section 1001.36, subdivision (c), the trial
court is directed to grant defendant’s motion for diversion.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
FEINBERG, J.
6
