Filed 8/26/26 P. v. Diaz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B350027

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24TRCF00195)
v.

ROGELIO DIAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Laura Ellison, Judge. Affirmed.
Jennifer Peabody and Richard B. Lennon, under
appointments 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, Kenneth C. Byrne and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Rogelio Diaz entered a no contest plea to one count of
animal cruelty and admitted using a deadly and dangerous
weapon in the commission of the offense. He appeals from the
denial of his petition for mental health diversion under Penal
Code section 1001.36.1 The trial court found Diaz unsuitable for
diversion on the ground that he would pose an unreasonable risk
to public safety if treated in the community. It also was not
satisfied that the proposed treatment program would meet Diaz’s
specialized needs. We conclude that substantial evidence
supported the trial court’s finding that Diaz was not suitable for
diversion under section 1001.36, subdivision (c)(1), and the trial
court did not abuse its discretion in rejecting the proposed
treatment plan as inadequate. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The Charged Crimes
On April 5, 2024, Diaz killed a cat in an incident captured
on surveillance video. At approximately 3:00 p.m., the cat
entered the surveillance video’s frame. Diaz was across the
street. He removed a pair of gloves from a backpack and put
them on. He then crossed the street, picked the cat up from a
driveway and moved it to a sidewalk. The cat appeared to be
struggling. Diaz placed the cat on the sidewalk and forcefully
punched it. The cat continued moving while Diaz briefly stepped
away. He then “drop[ped] his body weight on the cat.” At

1 All undesignated statutory references are to the Penal
Code.

2
3:12:40 p.m., 3:13:10 p.m., and 3:13:55 p.m., Diaz repeatedly
stomped on the cat. When he stopped, the cat appeared lifeless.
Diaz walked away.
Diaz admitted to investigating deputies that he
intentionally beat the cat, causing its death. A necropsy showed
the cause of death was most likely “skull fractures and ensuing
shock.”
Five days later, on April 10, Diaz killed a dog. Surveillance
cameras recorded the incident. Diaz and his stepdaughter passed
a Chihuahua on a sidewalk. Diaz was riding a bicycle and his
stepdaughter was riding in a toy car. Without any apparent
provocation, Diaz kicked the dog, sending it airborne several feet
until it landed on the street, motionless. Diaz and his
stepdaughter continued down the sidewalk. Shortly after, Diaz
returned alone. Wearing a glove, he picked the dog up from the
road and placed it back on the sidewalk. Diaz left. When he
returned, Diaz rode his bicycle over the dog twice, stomped on it,
then ran over it again. The dog made sounds as if it were in pain.
Diaz then strangled the dog with his hands until it lost
consciousness. Diaz later admitted that the dog regained
consciousness, so Diaz got on his bicycle and rode over it
approximately three times.
When the dog’s owner came home, she saw Diaz standing
in front of her dog. The dog was not breathing. The owner
observed “a lot” of injuries. The dog ultimately died of its
injuries.
Diaz later told a detective he was taking his stepdaughter
to a babysitter when they encountered the dog. He kicked it
because he thought it was going to bite her. After he left the

3
child with the babysitter, he returned to check on the dog. He
found it “crying,” so he killed it “to put it out of its misery.”2
In May 2024, the People charged Diaz with two counts of
animal cruelty for the killings of the cat (count 1) and the dog
(count 2). (§ 597, subd. (a).) In a later amended information, the
People alleged that as to count 2, Diaz personally used a deadly
and dangerous weapon, a bicycle, in the commission of the
offense. The information also added aggravating factors under
California Rules of Court, rule 4.421.
Petition for Mental Health Diversion
In August 2025, Diaz filed a petition for mental health
diversion pursuant to section 1001.36. He submitted a
psychological assessment in support of the petition from Dr.
Krystal Bowen. Dr. Bowen opined that Diaz had a “probable
diagnosis” of: “Alcohol Use Disorder,” “Amphetamine-Type
Substance Use Disorder,” and “Posttraumatic Stress Disorder.”
Dr. Bowen described Diaz’s mental health history: “Mr.
Diaz has a history of . . . emotions of aggression and anger . . . .
By high school, the defendant struggled with managing his
temper and mood instability due to suspensions in school related
to physical altercations. By 11th grade, at 17 years old the
defendant was prescribed psychotropic medication of Zoloft and
Abilify and was in therapy.” She reported that Diaz “struggles
with daily use of alcohol, Xanax, and methamphetamines. The

2 Some of the details of the crimes were recounted in the
prosecution’s opposition to the petition for mental health
diversion. The opposition recounted what was reflected in the
surveillance videos, which were admitted into evidence at the
preliminary hearing. Diaz’s counsel did not object to or dispute
the People’s description of the evidence.

4
defendant began marijuana use in high school to find relief from
his mental health symptoms he was experiencing, per his school
records, he was mandated to participate in an NA program by 17-
years-old.”
Diaz attended weekly drug rehabilitation classes in high
school. The report indicated that although Diaz has “an
inconsistent history of mental health services, he is still likely
internally and privately suffering from his internal distress . . .
his mental anguish and distress is manifested in various ways,
through his drug use, conduct problems, aggression and violent
tendencies. He has now learned to find comfort and ‘escape’
through heavy drugs that produce severe symptoms of psychosis.
Subsequently, his mood instability of anger, aggression and
impulsivity is either suppressed by his drug use and/or magnified
by his drug use, which has likely influenced his current alleged
offense.”
Regarding Diaz’s criminal history, Dr. Bowen stated: “The
defendant reported history of alleged offenses and/or convictions
related to assault, assault with a deadly weapon and robbery
when he was a juvenile. As an adult, the defendant reported an
arrest history related to domestic violence and current charge of
animal cruelty. The defendant’s report of the alleged offense, ‘I
have [sic] been smoking meth all that week, and on that day, I had
been drinking and took a Xanax. I didn’t even know what
happened, they had to tell me what I did.’ When asked how he
feels about his charges now that he is sober, the defendant
reported ‘I feel horrible.’ ” (Italics in original.) Despite
defendant’s statements, Dr. Bowen opined: “[H]e likely feels little
remorse of any lasting nature,” based on his “antisocial character
features.”

5
 Dr. Bowen concluded Diaz’s “future violence” risk was
“high.” She also found his “serious physical harm” risk was
“high.” She reported that Diaz “describes himself as someone
who tends to be easily angered and may have difficulty
controlling the expression of his anger.” Diaz’s “risk for
aggressive behavior is further exacerbated by the presence of a
number of features, such as a limited capacity for empathy,
impulsivity, and a sense of persecution, which have been found to
be associated with increased potential for violence.”
Dr. Bowen found that Diaz’s disorders were a significant
factor in the commission of the charged offenses, explaining his
“polysubstance use played a role in the alleged offense as the
drugs can aggravate and/or provoke symptoms of being
irrational, unstable, disoriented, with manifestation of odd
behaviors and a host of other symptoms that can impair
judgment and reasoning.”
She opined that Diaz’s “substance use can respond
positively to an inpatient drug/alcohol rehabilitation treatment
program.” While Diaz “appears to have [a] substantial interest in
making changes in his life and he appears motivated for
treatment,” “the combination of problems that he is reporting
suggests that treatment is likely to be quite challenging.”
In answer to the question of whether Diaz posed an
unreasonable risk of danger to public safety if properly treated in
the community, Dr. Bowen wrote: “No, Mr. Diaz’s participation in
an inpatient rehabilitation program that addresses his substance
use reduces his risk of danger to himself and public safety.” But
the report then warned: “LS/CMI test measure indicates a High
risk of reoffending due to risk factors of the defendant’s mental
health history, substance use history, juvenile conduct problems,

6
lack of participation in organized activity[.] These risk factors if
left unaddressed can statistically pose a risk of the Defendant
reoffending.” (Italics in original.) Dr. Bowen’s treatment
recommendation was an inpatient drug and alcohol rehabilitation
program lasting “up to 6 to 9 months,” and 12 to 24 anger
management classes.
In opposition to the petition, the People argued Diaz was
not eligible for diversion because he lacked a qualifying mental
health disorder, and any mental health disorder did not play a
significant role in the commission of the crimes. The opposition
further contended that the proposed treatment plan was
insufficient to satisfy section 1001.36 requirements. Finally, the
People argued Diaz posed an unreasonable risk of danger to the
public, so he was not suitable for diversion.
Trial Court Ruling
In September 2025, the trial court held a hearing on the
petition. The prosecutor argued that although Dr. Bowen
provided “suggestions,” there was no treatment program “before
the court” despite a year of searching, and it was possible no
treatment plan would accept Diaz due to his violent conduct.
Defense counsel responded that she “believed [Diaz] was screened
by the mental health program through the collaborative courts. I
just don’t have that actual program lined up. I can give the court
an actual treatment plan.” The court responded that it was not
going to “submit this to a different court.”
The court found by “clear and convincing evidence” a
“strong probability, very strong, [Diaz] would reoffend and
commit a super strike” and there was “not a treatment plan that
is suitable for the alleged offenses . . . .” The court cited Dr.
Bowen’s finding that Diaz was a “high risk” of reoffending and

7
stated it was “one of the most violent offenses . . . [the court had]
read [about] in a long time.”3
The court also found that Diaz had “years” to address his
substance abuse, having been previously offered treatment in
high school. He was now 28 years old. The court recited facts of
the charged offenses and found the evidence did not reflect
someone “acting under the fit of passion of having just
intoxicated themselves with Xanax or alcohol.”
The trial court expressly denied the motion based on
section 1001.36, subdivision (c)(4), dangerousness, and
section 1001.36, subdivision (f)(1)(A)(i), lack of an appropriate
treatment plan. The court also appeared to refer to one of the
eligibility factors, section 1001.36, subdivision (b)(2), in denying
the motion.
In October 2025, Diaz pled nolo contendere to one count of
animal cruelty under section 597, subdivision (a) (count 2), and
admitted the use of a dangerous weapon allegation under
section 12022, subdivision (b)(1). The trial court sentenced Diaz
to three years in state prison, pursuant to an agreed upon
disposition.
Diaz timely appealed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in
Denying Mental Health Diversion
A. Section 1001.36
Section 1001.36 requires a court to consider whether a
defendant is eligible and suitable for mental health diversion.
Under section 1001.36, subdivision (b), “[a] defendant is eligible

3 It is not clear whether the court was referring to both
offenses collectively, or one incident in particular.

8
for pretrial diversion pursuant to this section if both of the
following criteria are met: [¶] (1) The defendant has been
diagnosed with a mental disorder . . . [¶] (2) The defendant’s
mental disorder was a significant factor in the commission of the
charged offense. 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.”
If a defendant meets the eligibility requirements in
section 1001.36, subdivision (b), then the court must determine
whether the defendant is suitable for diversion as set forth in
section 1001.36, subdivision (c). A defendant is suitable for
diversion if four criteria are met: “(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”; and “(4) The defendant
will not pose an unreasonable risk of danger to public safety, as
defined in Section 1170.18, if treated in the community.” (Id.,
subd. (c)(1)–(4).)
“Section 1001.36’s reliance on the definition of
dangerousness in section 1170.18, necessarily encompasses the
list of super strike offenses found at section 667,
subdivision (e)(2)(C)(iv).” (People v. Moine (2021) 62 Cal.App.5th
440, 450 (Moine).) The super strike offenses listed in section 667,
subdivision (e)(2)(C)(iv) include homicide, several sexual offenses,

9
solicitation to commit murder, and any serious or violent felony
offense punishable in California by life imprisonment or death,
among others. (People v. Whitmill (2022) 86 Cal.App.5th 1138,
1149 (Whitmill).)
The statutory definition of “pretrial diversion” indicates
that the postponement of prosecution is subject to the court being
“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).)
Finally, “even 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.
[Citations.] But this ‘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.” (Sarmiento v. Superior Court (2024) 98
Cal.App.5th 882, 892–893 (Sarmiento).)
“A trial court’s ruling on a motion for mental health
diversion is reviewed for an abuse of discretion, and factual
findings are reviewed for substantial evidence.” (Whitmill, supra,
86 Cal.App.5th at p. 1147.) “A court abuses its discretion when it
makes an arbitrary or capricious decision by applying the wrong
legal standard [citations], or bases its decision on express or
implied factual findings that are not supported by substantial
evidence [citation].” (Moine, supra, 62 Cal.App.5th at p. 449.)

10
 B. Substantial evidence supported the trial court’s
finding that Diaz posed an unreasonable risk of
danger to public safety if treated in the
community and that the proposed treatment
plan was inadequate
Diaz contends the trial court erred by finding he posed an
unreasonable risk of danger to public safety. This suitability
factor required the trial court to find that Diaz “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).) In making this determination, 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.” (Ibid.)
The record contains sufficient evidence to support the trial
court’s finding. Dr. Bowen’s report detailed at length the high
risk that Diaz would engage in future acts of violence, including
acts causing serious physical harm. The report set forth a
myriad of factors that increased the level of risk, only one of
which was Diaz’s substance abuse. Indeed, after concluding that
Diaz’s “participation in an inpatient rehabilitation program that
addresses his substance use reduces his risk of danger to himself
and public safety,” the report warned in italicized font: “LS/CMI
test measure indicates a High risk of reoffending due to risk
factors of the defendant’s mental health history, substance use
history, juvenile conduct problems, lack of participation in an
organized activity . . . . These risk factors if left unaddressed can
statistically pose a risk of the Defendant reoffending.” Yet, the

11
proposed treatment plan included only two aspects of treatment,
substance abuse treatment and general anger management
classes, without any specified psychological or psychiatric
component.
The trial court could reasonably credit Dr. Bowen’s report
indicating that treatment would be “challenging” because of the
multiple factors implicated in Diaz’s mental health disorders;
that Diaz had come to rely on substances as a means of self-
treating the underlying mental health issues; and the report’s
warnings about the high level of risk that Diaz would engage in
future violence. To the extent Dr. Bowen could not propose a
treatment plan that would accomplish what the report suggested
was necessary—address Diaz’s substance abuse as well as the
“mental anguish and distress” that had caused him to rely on
substances to “escape” from those symptoms despite sporadic
mental health services—the trial court could, within the bounds
of reason, determine that he was unsuitable for diversion because
he posed an unreasonable risk of committing a super strike if
treated in the community. (See Siam v. Superior Court (2026)
118 Cal.App.5th 67, 83 [nothing in § 1001.36 “precludes a trial
court from rendering a dangerousness finding contrary to one
expressed by a mental health professional . . . .”].)
People v. Pacheco (2022) 75 Cal.App.5th 207 (Pacheco), is
instructive. The Court of Appeal affirmed the denial of diversion
on the basis that the defendant posed an unreasonable risk of
danger to public safety. The defendant deliberately set fire to
brush near a homeless encampment and ranch. (Id. at pp. 209–
210.) A psychologist diagnosed the defendant with schizophrenia
and stimulant use disorder. (Id. at p. 210.) The psychologist
opined that if the defendant met “certain conditions,” he “ ‘will

12
not pose an unreasonable risk of danger to public safety if treated
in the community.’ ” (Ibid.) The defendant had not previously
committed arson and the act seemed “ ‘very atypical and
uncharacteristic of him. His act of arson w[as] likely due to being
psychotic and delusional at the time. He is willing to take
antipsychotic medications which control these symptoms. If he
remains compliant with taking this medication regimen, and does
not use any methamphetamine, then he would be unlikely to
reoffend. . . . However, if he does not take his antipsychotic
medication as prescribed and/or returns to using
methamphetamine, then he would become unstable and psychotic
and be likely to reoffend in some bizarre manner.’ ” (Id. at
pp. 210–211.) There is no indication that the defendant had any
violent criminal history; the opinion notes he had prior arrests for
drug use only. (Id. at p. 214.)
In affirming the denial of mental health diversion, the
Court of Appeal cited the psychologist’s finding that if the
defendant did not take his medication or returned to using
methamphetamine, he was likely to reoffend. (Pacheco, supra, 75
Cal.App.5th at p. 214.) The court noted defendant had a “14-year
history of chronic methamphetamine abuse,” thus “his resolve to
stop using the drug is dubious.” (Ibid.)
Here, Dr. Bowen opined that Diaz would not pose an
unreasonable risk of danger to public safety if treated in the
community. However, she also found Diaz at “high risk” of
reoffending and, as the court in Pacheco implicitly found, she
explicitly concluded treatment would be “quite challenging”
because of the combination of factors contributing to his
“problematic behaviors.” As in Pacheco, the trial court did not
abuse its discretion in considering the psychologist’s finding that

13
Diaz would pose a danger to the community based on the
likelihood of reoffending if treatment was not successful.
Diaz relies on two cases in which the courts found the
record did not support a finding of dangerousness. Neither is
persuasive here. In People v. Hoffman (2015) 241 Cal.App.4th
1304, 1308, the court was concerned with resentencing under
Proposition 47, which reclassified “certain drug- and theft-related
offenses from felonies or wobblers to misdemeanors.” The court
concluded the defendant, a heroin addict with borderline
personality disorder who stole checks from her parents and had
no prior criminal history, was not an unreasonable risk of danger
to public safety. (Id. at pp. 1307–1311.) In People v. Williams
(2021) 63 Cal.App.5th 990, 993, the defendant engaged in
“extremely vicious and threatening harassment” of a business’s
owners “daily for two years” until his arrest. He also harassed a
neighbor. (Ibid.) The Court of Appeal found that while the
defendant had made violent threats, “he poses a low risk to public
safety in the uncontroverted opinion of two mental health
professionals,” had been “released on bond for more than two
years without incident,” and had no prior criminal record. (Id. at
p. 1003.)
Unlike the defendants in Hoffman and Williams, Diaz had
recently committed very violent acts. His conduct, while not
directed at a person, went far beyond vicious threats. While a
mental health professional opined that he did not pose an
unreasonable risk to public safety if treated in the community,
she also found that treatment would be difficult and that, without
treatment, he was at “high” risk of engaging in physical violence.

14
 The trial court did not abuse its discretion in concluding
that the evidence established Diaz was not suitable for diversion
based on his unreasonable risk of danger to public safety.
Moreover, even if Diaz was eligible and suitable, the trial
court could reasonably reject diversion because it was not
“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).) “The focus of this provision is on the program
of treatment, providing reasonable assurance that it will address
the defendant’s particular mental health needs. Under this
provision, a court might 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.)
As noted above, Dr. Bowen’s report diagnosed Diaz with
post-traumatic stress disorder; described his longstanding mental
anguish and distress; noted his limited capacity for empathy,
impulsivity, and sense of persecution; and suggested that his
substance use may have suppressed his “mood instability of
anger, aggression and impulsivity.” Despite identifying these
underlying conditions and connecting them to Diaz’s high risk of
reoffending and engaging in future violence, the recommended
treatment plan proposed only substance abuse treatment and
anger management classes. The report did not provide further
details. (Cf. Whitmill, supra, 86 Cal.App.5th at p. 1145 [doctor’s
report provided “a detailed treatment plan for appellant,
including antidepressant medication, psychological therapy,
substance abuse treatment, and intensive inpatient mental
health services” and “recommended a ‘dual-diagnosis treatment

15
program that addressed both his psychiatric disorder and his
substance abuse disorder’ ”].)
“Finding the treatment would not meet defendant’s
specialized health treatment needs is an appropriate basis to
deny diversion, assuming there is no abuse of discretion with the
analysis.” (People v. Russo (2026) 121 Cal.App.5th 134, 139.) We
disagree that the trial court abused its discretion in noting that
Diaz had been unsuccessful in previous substance abuse
treatment and that no specific program had been identified that
would provide treatment to him. While there were few details
about Diaz’s prior treatment, his past lack of success in
treatment was relevant to the court’s consideration of whether
the proposed treatment would be sufficient to address his needs
and the safety of treating him in the community. (Id. at p. 140.)
Similarly, while not dispositive, that no program was yet
identified to provide the proposed treatment was relevant to the
court’s evaluation of whether Diaz could, in fact, receive services
addressing his “challenging” specialized mental health treatment
needs.
The trial court did not abuse its discretion in denying the
petition for mental health diversion.4

4 The parties both address the eligibility requirement in
section 1001.36, subdivision (b)(2). We need not address this
issue, having found sufficient evidence to affirm on other
grounds.

16
 DISPOSITION
The trial court order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, P. J.

We concur:

HANASONO, J.

KARNOW, J.*

* Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

17