Filed 8/24/26 P. v. Neuman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F089819
Plaintiff and Respondent,
(Super. Ct. No. BF200007A)
v.

ROBERT ANDREW NEUMAN,
OPINION
Defendant and Appellant.

APPEAL from an order of the Superior Court of Kern County. Elizabet
Rodriguez, Judge.
Michael Reed, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Defendant Robert Andrew Neuman was charged with various crimes and
allegations arising from events commencing in June 2024 relating to the dissolution of
his marriage of 17 years. After the trial court found defendant unsuitable for mental
health diversion, he pleaded no contest to stalking and criminal threats. The court
sentenced him to two years eight months in prison. On appeal, defendant argues that
substantial evidence does not support the court’s conclusion that he posed an
unreasonable risk to public safety and the court erred in denying his motion for mental
health diversion. We affirm.
PROCEDURAL BACKGROUND
On June 24, 2024,1 the District Attorney of Kern County filed three complaints,
charging defendant with stalking while subject to a restraining order (Pen. Code,2
§ 646.9, subd. (b); case No. BF200007A, count 1; case No. BF200061A, count 3; case
No. BF200016A, count 2), disobeying a domestic relations court order (§ 273.6,
subd. (a); case No. BF200007A, count 2; case No. BF200061A, counts 2, 4), first degree
residential burglary (§ 460, subd. (a); case No. BF200061A, count 1; case
No. BF200016A, count 1), and battery-domestic violence (§ 243, subd. (e)(1); case
No. BF200016A, count 3).
On June 24, defendant pleaded not guilty, and the court set bail at $110,000 in
case No. BF200007A and $32,500 in case No. BF200016A. The court issued criminal
restraining orders in case No. BF200007A.3

1 References to months and dates are to the year 2024 unless otherwise stated.
2 Undesignated statutory references are to the Penal Code.
3 Defendant was arrested and served with a temporary domestic violence restraining order
on June 8, and was arrested for violating it on June 11. Defendant posted a $10,000 bond in case
No. BF200061A on June 10. A second temporary domestic violence restraining order was
served on defendant on June 12, and he was arrested after violating it on June 16. Defendant
posted a $50,000 bond in case No. BF200061A on June 17. He violated the restraining order
again June 18 and 20.

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Defendant filed a motion to reduce the bond in case No. BF200007A on July 1. He
appeared and pleaded not guilty in case no. BF200061A on July 3, and the court
personally served defendant with a restraining order in that case.4
The district attorney filed a fourth complaint on July 17 (case No. BF200340A)
charging defendant with stalking (§ 646.9, subd. (a); count 1) and disobeying a domestic
violence court order (§ 273.6; count 2). Defendant appeared on July 19 and pleaded not
guilty. The court personally served defendant with a domestic violence restraining order.
Defendant filed a motion to dismiss all but one stalking charge filed in the various
complaints as duplicative, given that section 646.9, subdivision (a) is a continuous
offense. He also filed a motion to reduce his bail on July 29. The court granted the latter
motion on August 1, and reduced defendant’s bail to $10,000 in case No. BF200007A,
which he posted that same day. The court reduced defendant’s bail to $25,000 in case
No. BF200340A.
The prosecution moved to file an amended complaint consolidating defendant’s
various cases. The court granted the request on August 15, and the district attorney filed
a consolidated complaint charging defendant as follows: arson of personal property on
June 8 (§ 451, subd. (d); count 1), first degree residential burglary on June 8, while the
victim was present (§§ 460, subd. (a), 667.5, subd. (c)(21); count 2), stalking while
subject to a restraining order between June 8 and June 20 (§ 646.9, subd. (b); count 3),
criminal threats on June 16 (§ 422; count 4), first degree residential burglary on June 18
(§ 460, subd. (a); count 5), battery—domestic violence on June 8 (§ 243, subd. (e)(1);
count 6), and disobeying domestic relations court orders on various dates (§ 273.6,
subd. (a); counts 7–16). Defendant pleaded not guilty. On that date, the court also

4 Recognizing that defendant had posted two bonds totaling $60,000, the court set bail in
that amount.

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considered reports that defendant violated his pretrial monitoring conditions, found him
in violation, exonerated his bail bond, and remanded him to custody.
Defendant filed a motion requesting mental health diversion (§ 1001.36) on
January 6, 2025. The motion included an evaluation by Dr. Michael Musacco, a clinical
psychologist, who concluded defendant suffered from major depressive disorder and
substance use disorder, his crimes occurred based on the substantial impairment to his
thought processes resulting from the disorders, his condition would respond to treatment,
he had no history of “strike-type offenses,” and his risk for any type of recidivism “will
be substantially decreased as long as he complies with the treatment programs previously
recommended.”
The prosecutor opposed the motion. After hearing the motion on January 22,
2025, the court denied defendant’s request for mental health diversion in a written ruling
on February 10, 2025. The court found that treatment of defendant in the community
would pose an unreasonable risk to public safety. Defendant filed a motion for
reconsideration on February 24, 2025. The court granted defendant’s motion for
reconsideration but denied defendant’s motion for mental health diversion.
On April 1, 2025, defendant pleaded no contest to stalking and criminal threats as
charged in counts 3 and 4 of the consolidated complaint in exchange for a total sentence
of two years eight months in prison and the dismissal of the remaining charges, including
a separate misdemeanor charge of violating the restraining order. Defendant
acknowledged his understanding of his constitutional rights, waived his rights, and
agreed to the factual basis for the plea based upon police reports. The court accepted
defendant’s plea and adjudged him guilty.
The court sentenced defendant on May 7, 2025, to the low term of two years in
prison as to count 3 and a consecutive eight-month prison term as to count 4. The court
also ordered defendant to pay victim restitution (§ 1202.4, subd. (f)) in the amount of
$9,535 and various other fines and fees. The court issued a 10-year restraining order

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prohibiting defendant from contact with K.N. except for the safe exchange of the
children’s custody.
Defendant filed a timely notice of appeal on May 13, 2025, which included a
certificate of probable cause granted by the trial court permitting defendant to challenge
the court’s denial of mental health diversion.
FACTUAL BACKGROUND5
I. Underlying facts of the offenses.
On June 2, K.N. was using her cell phone in the backyard when defendant entered
the backyard, jumped on her, and wrestled with her to take the cell phone. Defendant let
go when their daughter attempted to call the police. Later that day, defendant told K.N.,
“Never do that again, or you’ll be sorry. I should’ve thrown you in the pool. I’ll beat
your ass next time,” and “I’ll bash your fucking face in if you ever call the cops again.”
When defendant’s daughter heard the yelling, she came from her room screaming and
crying, and defendant told her she was “fucking crazy and need[ed] help.” He told K.N.
that he would get his drug dealer’s girlfriends to kick her ass.
On June 4, K.N. and her three children left home to stay with defendant’s father.
Defendant sent K.N. approximately 337 text messages on June 7, including statements
that he was “going to fuck [K.N.’s] sister,” “I will always be here for you always unless
it’s one of my buddies then your dad will forever walk with a limp,” “Looks like you down
in the street in your car,” and “Die.” According to defendant’s daughter, defendant had
been to the house earlier, but they would not let him inside. On June 8, commencing
after midnight, defendant texted, “Burn bitch burn,” “I will be there don’t get startled,”
and, at 2:59 a.m., “You can’t lock me out of my dad’s house.” Defendant then broke into
his father’s house (where he knew K.N. and his children were staying) at 5:20 a.m.,

5 Our description of the underlying facts are taken from defendant’s section 1001.36
motion, the prosecution’s opposition to defendant’s motion, evidence provided by the parties,
and the clerk’s transcript.

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which set off the alarm. He appeared in the room where K.N. was sleeping with one of
their sons and pushed K.N. to the ground as he attempted to take her phone. K.N. ran
from the house and screamed for the children to call the police. According to defendant’s
daughter, defendant “started like running around and throwing things on everywhere and
then like screaming at my mom.” Defendant rummaged through the kitchen, returned to
the room holding a screwdriver, and charged his other son while attempting to enter the
closet. Defendant attempted to interfere when his daughter called the police and shoved
his son, who was trying to protect the daughter. Defendant texted K.N. approximately
30 minutes later, “I knew it you sick fuck cheese burgers and his buddy is coming g over
you are dead,” “[r]un and hide your a stupid piece of shit,” and “you are going to fuck I g
pay bitch.”6
K.N. provided a letter to the court and, regarding defendant’s actions on June 8,
claimed that she “was sure he was going to kill [her].” Defendant burst into the room
where she was sleeping and yelled that he would get her phone. When she ran, defendant
pushed her to the ground. She got up and called the police while running from the home
and “knew [she] was in a fight for [her] life.” According to her children, defendant
looked for K.N. in each room, and upon opening the door to their daughter’s room, told
his daughter that she was a whore. Defendant tried to take the daughter’s phone so she
could not call police and attacked the son when he defended her. Defendant rummaged
through drawers in the kitchen, and the children thought he was looking for a knife and
believed he would try to kill K.N. Defendant came from the kitchen with two
screwdrivers and caused the son to back away in fear. Defendant attempted to kick in a
door to a locked closet because he thought K.N. was inside.

6 Although charged as having occurred on June 20, phone records showed these messages
were sent on June 8.

6.
 Deputies found defendant in the backyard of the family residence where he was
burning K.N.’s clothing, shoes, and purses. He admitted lighting K.N.’s belongings on
fire in his burn barrel but claimed it was safe. When questioned by officers, defendant
said that he knew the door to his father’s house was secured by only a latch near the top
and he used his shoulder to pop the door open. Defendant claimed that he did not touch
K.N. and “she jumped on the ground,” but he admitted he was trying to take her phone
and intended to upload it and then return it. Defendant believed that K.N. was hiding in
the closet, so he removed two screwdrivers from his pocket, but his children told him to
leave. Defendant told the officer that his father called him while he was outside the
house, accused him of breaking into the house, and told him that he would be going to
jail. Defendant claimed that he was angry his father let K.N. stay in the house and
because his children had not responded to him, and he “lost [his] cool.”
The officers served defendant with an emergency restraining order that prohibited
him from contacting K.N. or the children and from coming within 100 yards of their
home. Defendant called K.N. three times from jail and, after he was released, returned to
the family residence at 10:30 p.m.
K.N. and the children left their home, along with any electronic devices, following
the incident “out of fear for [their] lives.” The following day, on June 9, defendant text
messaged K.N. 19 times and was arrested when he returned to the family residence. He
was released the next day and emailed K.N. on June 11. Defendant was served with a
second domestic violence restraining order on June 13. That same day, he texted K.N.’s
father, “I will never leave her alone.”
On June 14, defendant sent K.N. several text messages showing the location of her
vehicle, time stamps, and the duration her vehicle was parked. While K.N. was at the
family residence, she observed a van parked down the street that then parked in the
middle of the street in front of the residence. When she left the residence, defendant
followed her while “flailing his arms out of the vehicle” for approximately one mile

7.
before turning away. K.N. did not know how defendant knew she was at the residence as
she had been staying with her sister since June 9. Defendant contacted the police and
told them that he would be leaving town because he knew he had violated the restraining
order and did not want to go to jail. He advised them that he had contacted K.N. “to be a
dick” and knew her location because he had placed tracking devices in their vehicles. He
claimed to have gone to the residence that day to “check on it” and saw that K.N. was
there. When she left, defendant followed her to obtain his property that he believed she
had removed from the residence.
K.N. called the police at 3:00 a.m. on June 15, and advised that defendant had
texted her 52 times. Defendant told police that he knew he was subject to a restraining
order but did not think that it could stop him from speaking to his wife and that he had
texted her to say that he loved her and wanted to see their children. He also admitted that
he had visited the residence in order to speak with her.
After defendant was released from custody on June 17, he contacted K.N.’s
mother on June 18, to ascertain K.N.’s location and even asked that she contact K.N. on
his behalf. He asked for a chance to talk to K.N. so she would drop the charges. He also
communicated with K.N. using a number she did not recognize and referred to himself in
the third person. He advised K.N. to drop the restraining order, told her she was involved
in risky behaviors, and texted similar messages to K.N.’s mother. Defendant was also
observed at the family residence.
While the police were interviewing K.N. about the events on June 18, defendant
texted her wanting to see the children. Defendant’s mother told police that defendant had
asked her to contact K.N. on his behalf but she refused. When officers contacted
defendant, he initially denied violating the restraining order because K.N.’s mother was
not a protected person under the order but later admitted that his actions violated the
order.

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 On June 20, defendant contacted K.N. by text and voicemail and arrived at K.N.’s
location where she was talking to police. He was arrested.
On July 3, defendant was served with a third domestic violence restraining order
but contacted K.N. from jail the following day.
Defendant was served with a three-year domestic violence restraining order on
July 18. On August 1, the court released defendant on bail with pretrial release
conditions that included location monitoring and that he refrain from the use of alcohol or
drugs, submit to testing, and enroll in an outreach program. Defendant was released from
custody the following day. On August 12, officers found defendant in possession of
alcohol, and he admitted consuming alcohol. On August 14, defendant texted K.N.,
“Enjoy your last year of ever working in this city again. Go away and enter the dark
world you zoned up for … gangster bitches are wanting your payment.” He also texted,
“Eat a bullet and do us all a favor. Please! Your time is over. You have been disposed.”
The court found defendant violated conditions of his pretrial release and remanded him to
custody on August 15.
Thereafter, in August and September, defendant wrote at least three letters to his
children expressing remorse, followed by letters in October denying any wrongdoing,
claiming he had been set up, and asserting K.N. was manipulating them. He sent a letter
to the family dog, left a voicemail for his daughter, and wrote a letter to his wife that
stated, “No more police, this is serious and between us & the kids. No Police!!!”
K.N. obtained another restraining order on December 20, that included the
condition that defendant have no contact with the children. Defendant sent a letter
addressed to the family dog that stated, “I am set up to get out and the time will come
where me & my friends will have the choice to go to every front door of every phone
number on my personal my contact list that shattered me. (POS, scum) We will converse
with both the Man & his wife or girlfriend. They will know the situation and who I am,
where, when & how. No one will not listen to me when I have my blood brothers. I want

9.
to never do meet these piece of shit losers, but I have no other choice.” He sent an
envelope to his daughter with “No more games” written in the left corner on
December 30, and another letter to the children on January 7, 2025.
II. Defendant’s motion for mental health diversion.
A. Defendant’s Motion
Defendant filed a motion requesting mental health diversion (§ 1001.36) on
January 6, 2025. Dr. Forrest Doan, a psychiatrist with Kern County Behavioral Health,
diagnosed defendant with depression, anxiety disorder, alcohol use disorder, and cocaine
use disorder on July 15. Defendant was evaluated again on October 5, by Dr. Musacco,
and diagnosed with major depressive disorder and substance use disorder. Dr. Musacco
concluded that defendant met the criteria for diversion pursuant to section 1001.36.
Defendant, 46 years old at the time, described that he had completed high school,
obtained a bachelor’s degree in agriculture/business, and had been working with his
father-in-law for 14 years. Defendant had been married for 17 years and had three
children between the ages of 10 and 16.
Defendant claimed that he developed a substance abuse problem, which
aggravated his relationships with family members, and also became addicted to buying
and selling sports cards. Defendant described participating in a 30-day alcohol treatment
program three years before and that he was sober for one year before relapsing.
Defendant participated in 10 days of a treatment program just prior to being incarcerated
after the court revoked his bail. Defendant most recently used methamphetamine
between March and May, but he did not believe it was a problem. Defendant was taking
Prozac upon the recommendation of his general practitioner for approximately two years.
Defendant described that he had been angry and resentful before his arrest because
he believed his wife had been unfaithful and his marriage was over. He became obsessed
with obtaining proof of his wife’s infidelity at the expense of his physical and mental
health. Defendant claimed that he wanted to prove her guilt so as to prove his own

10.
mental stability, he was distressed because he lost his job and work vehicle due to the
first restraining order, and he had not recognized the need to move on until he was
arrested seven weeks before.
Dr. Musacco concluded that defendant met the criteria for mental health diversion.
He recognized that defendant’s behavior may have frightened his family but noted that
defendant did not have a history of “strike-type” offenses, “which define the
unreasonable risk of danger to public safety,” and opined that defendant’s risk of
recidivism would be substantially decreased if he complied with the recommended
treatment programs.
Defense counsel argued that defendant saw mental health professionals while
incarcerated in July, and he was released on bail on August 1, with conditions ordering
him to have no contact with and stay away from his wife, be monitored with a GPS
device, and participate in an outpatient program for substance abuse. Defendant admitted
consuming alcohol on August 12, and the court revoked his bail a few days later.
Defense counsel argued that defendant had been a productive and law-abiding citizen his
entire life who was involved in his children’s activities, and his background was devoid
of any indication that he would commit a super strike against any person. As an
explanation for some of the charges, defense counsel argued that defendant had
permission from his father to visit his father’s home and had been told by a police officer
that he could go to the family residence if K.N. was not present.
B. Prosecutor’s Opposition to Defendant’s Motion
In opposition to defendant’s motion, the prosecutor argued that defendant was not
suitable for mental health diversion because he would not comply with treatment as
evidenced by his prior history. Defendant had participated in a 30-day residential alcohol
treatment program three years before but then relapsed the following year. Defendant
received psychiatric treatment two years before and had been taking medication for

11.
depression that he continued taking at the jail. Defendant had participated in 10 days of
treatment for alcohol abuse but relapsed before completion of the program.
Additionally, even while subject to bail restrictions between August 2 and
August 15, defendant used alcohol and violated the restraining orders by sending K.N.
death threats. Defendant had been arrested five times for violating the restraining orders,
which had little effect on his conduct. After being served with a criminal restraining
order on December 20, in yet another misdemeanor case filed in response to his violation
of the court’s restraining order, defendant sent a letter to K.N. threatening to go “door-to-
door with his ‘blood brothers’ ” and that no one would listen to K.N. when he does.
C. Court’s Denial of Defendant’s Motion
During the hearing on defendant’s motion, the court expressed concern that
defendant had threatened to kill K.N. and then engaged in altercations with family
members where he physically pushed and shoved them and tried to find weapons.
K.N.’s letter to the court described the receipt of several text messages that were
either disturbing or included death threats. Defendant’s 14-year-old daughter wrote that
he threatened to “bash” her “F’ing face in” if she ever called the police again and that he
would have his drug dealer’s girlfriends beat up K.N. The daughter feared that defendant
would hurt or kill them, and she would stay with friends or family when he was released
on bail. Defendant’s 10-year-old son provided a letter that described hearing defendant
call K.N. a whore, cuss at her, and say that he would kill her. The court expressed
concern about defendant’s verbal threat to kill and that his conduct indicated he would
carry out the threat and commit a super strike.
The court denied defendant’s request for mental health diversion in a written
ruling on February 10, 2025. The court found that defendant was eligible based upon
Dr. Musacco’s diagnosis of substance abuse disorder and major depressive disorder and
that these conditions were a significant factor in the commission of defendant’s offenses.
The court also accepted Dr. Musacco’s opinion that defendant’s symptoms would respond

12.
to mental health treatment and that defendant consented to diversion and waived his right
to a speedy trial.
However, the court found that defendant posed an unreasonable risk of harm to
public safety if treated in the community in light of the letters written by members of
defendant’s immediate family, his failure to abide by the conditions of the restraining
orders, his lack of awareness of the seriousness of his behavior, and the letters he wrote to
his children even while receiving medication. Given that many of these facts were not
addressed by Dr. Musacco, the court concluded that defendant posed an unreasonable risk
of homicide or attempted homicide, which are super-strike offenses pursuant to
section 1001.36, subdivision (c)(4). The court concluded that defendant “is absolutely
not suitable for mental health diversion” based on “[t]he facts of Defendant’s offense[s],
his continued behavior after being charged, and the threats described by his wife and
children.”
D. Court’s Denial of Defendant’s Motion for Reconsideration
Defendant filed a motion for reconsideration on February 24, 2025, to respond to
family members’ letters not provided in advance of the earlier hearing and after obtaining
an additional opinion from Dr. Musacco. Defense counsel presented additional evidence
to attack the credibility of his wife and children who advised the court that defendant
intended to severely harm or kill them. Additionally, Dr. Musacco opined that the letters
and other communications between defendant and his family, though containing verbal
threats and evidence of volatile behavior, did not allege violence of the nature consistent
with super-strike offenses. Dr. Musacco maintained his opinion that defendant did not
pose an unreasonable risk of committing a super strike if treated in the community.
At the hearing on defendant’s motion to reconsider the court’s ruling, defendant
introduced evidence of two recorded 911 calls and body camera footage of one of the
incidents to contradict the family’s letters to the court. Defense counsel argued that
Dr. Musacco’s opinion had not changed. Dr. Musacco believed defendant did not pose an

13.
unreasonable risk to the safety of the community and the family’s beliefs expressed to the
contrary were contradicted by statements they had made to police during the
investigation.
The court noted that during the earlier hearing, defense counsel had downplayed
the events of June 8, by attempting to demonstrate that defendant’s visit to his father’s
residence was with permission. However, the body camera video supplied by defendant
showed that he did not have permission to enter the house and broke the latch to obtain
entry. “He obviously knew it was locked up and must have known they were there and
was going after her.” The court recognized that defendant had not yet caused bodily
harm but characterized the events as “a pattern of behavior that is increasing and won’t
stop,” noting the family members who knew him best believed that he would kill K.N.
Balancing the opinions of those that knew defendant and Dr. Musacco, who only
reviewed the events, the court stated that defendant’s treatment in the community posed
an unreasonable risk that he would commit a homicide offense or attempted homicide
offense. The court also found that defendant was not suitable for mental health diversion
due to his repeated pretrial release and restraining order violations throughout the case.
DISCUSSION

I. The trial court’s finding that defendant’s mental health treatment in the
community would pose an unreasonable risk to public safety is supported by
substantial evidence.
A. Applicable Law and Standard of Review
Section 1001.36 gives trial courts the discretion to grant pretrial diversion for
individuals suffering from certain mental health disorders. (People v. Frahs (2020)
9 Cal.5th 618, 626.) Section 1001.36, subdivision (b) provides that a defendant is
eligible for pretrial diversion if two criteria are met. First, the defendant has been
diagnosed with a mental disorder, such as the one with which defendant was diagnosed,
within the last five years by a qualified mental health expert. (§ 1001.36, subd. (b)(1).)

14.
Second, the “defendant’s mental disorder was a significant factor in the commission of
the charged offense.” (§ 1001.36, subd. (b)(2).)
If a defendant meets these eligibility requirements, the defendant is suitable for
pretrial diversion if all of the following 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.” (§ 1001.36,
subd. (c)(1)–(4).)7 At issue here is whether the fourth criterion is satisfied.
Section 1170.18, in turn, 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). (§ 1170.18, subd. (c); People v.
Whitmill (2022) 86 Cal.App.5th 1138, 1149.) Thus, a trial court must determine whether
“the defendant is likely to commit an offense … known colloquially as a ‘ “super
strike.” ’ ” (People v. Bunas (2022) 79 Cal.App.5th 840, 851, fn. 11 (Bunas).)
Qualifying super strikes include homicide, attempted homicide, 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, and

7 Section 1001.36, subdivision (c) was amended on June 29, 2026, and effective January 1,
2027, will provide as to the fourth criterion that a defendant is suitable for pretrial diversion if
they “will not pose a substantial and undue risk to the physical safety of another person, if treated
in the community” and will no longer require the court to find that the defendant poses an
unreasonable risk to public safety as defined by section 1170.18. (§ 1001.36, subd. (c)(1)(D), as
amended by Stats. 2026, ch. 18, § 1; see Assem. Bill No. 46 (2025–2026 Reg. Sess.) § 1.) “By
providing a redefined risk to public safety standard, the bill gives courts more discretion to
determine unsuitability of a person who otherwise meets the statutory eligibility requirements.”
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 46 (2025–
2026 Reg. Sess.) as amended Feb. 13, 2026, pp. 7–8.)

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any sexually violent offense or sexual offense committed against minors under the age of
14. (§ 667, subd. (e)(2)(C)(iv); Whitmill, at pp. 1150–1151.)
Mental health diversion is discretionary, not mandatory, even if all the
requirements are met. (§ 1001.36, subd. (a); People v. Gerson (2022) 80 Cal.App.5th
1067, 1080 (Gerson); People v. Oneal (2021) 64 Cal.App.5th 581, 588.) But this
“ ‘residual’ ” discretion must be exercised consistently with the principles and purpose of
the law, which 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;
accord, § 1001.35; People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891.)
We review the trial court’s decision to deny mental health diversion for abuse of
discretion. (People v. Graham (2024) 102 Cal.App.5th 787, 795.) “ ‘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].’ ” (Ibid.) The fact that reasonable
minds may differ as to the appropriate resolution of an issue does not demonstrate an
abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.) Nor does the existence
of contrary evidence provide a basis to supplant the trial court’s supported findings. (See
People v. Brown (2024) 101 Cal.App.5th 113, 123–124; People v. Gerson, supra,
80 Cal.App.5th at p. 1086.)
B. Analysis
In assessing the risk of danger to public safety, the trial court may consider the
opinions of the district attorney, the defense, and qualified mental health experts, as well
as the defendant’s treatment plan, the defendant’s violence and criminal history, the
circumstances of the charged offense, and any other factors the court deems appropriate.
(§ 1001.36, subd. (c)(4); Bunas, supra, 79 Cal.App.5th at p. 862.)

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 Here, defendant has not been previously convicted of a super strike, nor was he
charged with one in the instant case. However, that is not determinative. (See People v.
Hall (2016) 247 Cal.App.4th 1255, 1266 [rejecting argument that trial court may only
exercise its discretion to find an unreasonable risk to public safety when considering an
offender who has previously committed a super strike].) In fact, defendant has no prior
criminal history. Nonetheless, the circumstances of the charged offenses described are
very concerning.
Defendant angrily attacked his spouse on two different occasions. Although he did
not manage to inflict serious injuries, his violence escalated (over a relatively brief
period) and appears to have been motivated—at least in part—by jealousy and a desire to
dominate and control his wife. We can infer that the trial court was implicitly concerned
that “ ‘ “there [is] a great likelihood that any one battering episode is part of a larger
scheme of dominance and control [and] that scheme usually escalates in frequency and
severity.” ’ ” (People v. Kerley (2018) 23 Cal.App.5th 513, 535; accord, United States v.
Castleman (2014) 572 U.S. 157, 160 [“[d]omestic violence often escalates in severity
over time”].)
The trial court had ample grounds for such concerns. On June 4, defendant
attacked K.N. to get her cell phone in the presence of the children but left when his
daughter threatened to call the police. This incident caused K.N. to move with her
children to defendant’s father’s house. On June 7, defendant went to his father’s house to
see his family but was not allowed inside. He then texted K.N. a number of times,
including, “Burn bitch burn,” before eventually breaking through the door of the
residence in the early morning hours of June 8. He yelled, grabbed K.N. and, when she
ran, pulled out two screwdrivers and attempted to enter the closet where he believed that
she was hiding. His children feared that he intended to hurt or kill K.N. and called the
police. Defendant left when the police were called but then went to their family

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residence where he burned K.N.’s belongings. Defendant texted K.N. that she was
“going to fuck I g pay,” he was sending someone to her, and she was “dead.”
After defendant was arrested and served with an emergency restraining order, he
called K.N. from jail, posted bail, and went to the family residence the following day.
Defendant was arrested on June 11, and served with a second restraining order on
June 13. After being released from custody, on June 14, defendant texted K.N. with
information that indicated he was aware of her location, and he followed her from the
family residence when she went there to obtain some belongings. Defendant later
admitted to police that he was able to track K.N. through an air tag in her vehicle.
Defendant was again arrested and, after his release, contacted K.N. and other members of
the family in an attempt to communicate with K.N. He was arrested again at the family
residence where K.N. was meeting with police. Even after appearing in court and despite
the restraining orders, defendant contacted K.N. again and advised a family member that
he would never leave K.N. alone.
Defendant was served with a three-year domestic violence restraining order on
July 19, and the court released him from custody on August 1, with conditions that
included location monitoring, no drug or alcohol use, and participation in an outreach
program. Defendant admitted he consumed and possessed alcohol on August 12. He
texted K.N. two days thereafter and advised her to enjoy her last year, to eat a bullet, her
time was over, and she had been disposed. He was remanded to custody on August 15.
He continued to communicate with K.N. and, on December 20, sent a letter advising that
he was “set up to get out,” and a time was coming where he and his friends would go to
every door of the people who “shattered” him.
Defendant violated numerous restraining orders almost immediately and
communicated threats to K.N., attempting to intimidate her with information that he was
tracking her location and that other individuals would kill her at defendant’s behest. It is
not unreasonable for the trial court to have considered the level of violence and trauma

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that defendant had inflicted and threatened to inflict, or alternative scenarios if, for
example, he carried out his threats to kill K.N., as both K.N. and the children believed
was possible. (Cf. People v. Pacheco (2022) 75 Cal.App.5th 207, 209–210, 213–214
[trial court did not abuse discretion in considering possible casualties to residents or
firefighters that could be caused if the defendant were again to intentionally start a brush
fire]; People v. Brown (2011) 192 Cal.App.4th 1222, 1237 [“murder is ‘the ultimate form
of domestic violence’ ”].)
The trial court could also properly consider that defendant had received substance
abuse treatment before the charged offenses and had been released on conditions of
pretrial release but relapsed within two weeks. (See People v. Hall, supra,
247 Cal.App.4th at p. 1262 [“ ‘The critical inquiry … is not whether the risk is
quantifiable, but rather, whether the risk would be “unreasonable.” ’ ”].) Dr. Musacco’s
evaluation indicated that defendant’s risk to public safety would be reduced if he
complied with treatment, but defendant showed that he would not comply with court
orders and had failed substance abuse treatment twice previously.
Defendant argues that this is not the type of case where we should uphold the trial
court’s dangerousness finding and cites several cases wherein reviewing courts concluded
the trial courts abused their discretion, in the mental health diversion context, by finding
those defendants posed an unreasonable risk of danger to public safety. (See People v.
Moine (2021) 62 Cal.App.5th 440, 444, 445, 447, 450, 451 [abuse of discretion to find
the defendant in case involving charges of assault (fist fight) and criminal threats (against
other victims) posed unreasonable risk of danger because no evidence he had access to
guns, his criminal history included no violent felonies, and trial court previously released
defendant on bail]; People v. Whitmill, supra, 86 Cal.App.5th at pp. 1142–1144, 1146,
1150–1151, 1153 [no substantial evidence to support finding the defendant—charged
with discharge of a firearm with gross negligence—posed unreasonable risk of danger
when he fired gun only into the air in a parking lot, did not injure anyone, threw the gun

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away, tried to avoid confrontation, cooperated with police, and criminal history involved
only drug offenses and theft].)
However, trial courts must consider carefully the facts of each case and the
purpose of the statute when exercising the discretion that the Legislature granted them.
In this case, the trial court viewed defendant’s conduct as involving escalating threats to
K.N., traumatization of his family, and the involvement of third parties to harm K.N.
Although Dr. Musacco provided an opinion that defendant is a low public safety risk, that
opinion was focused upon the fact that defendant had not been convicted for a super
strike and Dr. Musacco’s characterization of defendant’s threats as not being violent.
Defendant’s refusal to abide by the terms of the restraining orders and conditions of
pretrial release also supports the trial court’s finding that treating defendant in the
community would present an unreasonable risk that he would commit a super strike.
(See People v. Jefferson (2016) 1 Cal.App.5th 235, 245.)
Defendant argues that the trial court concluded that he was likely to commit a
super strike only because it found his acts met the standard definitions of the offenses,
“[b]ut this alone is not enough because the Legislature did not exclude those charges from
eligibility … and the present facts look just like all violations of” those code sections. We
reject this argument because “there is nothing in section 1001.36 … that precludes a trial
court from relying primarily, or even entirely, on the circumstances of the charged offense
or offenses in denying a motion for diversion.” (Bunas, supra, 79 Cal.App.5th at p. 862.)
We also disagree that the court found defendant at risk to commit a super strike
merely because his actions met the standard definition of a criminal threat, violating a
restraining order, or stalking. The court considered more than whether defendant’s
actions placed K.N. in reasonable fear but also concluded that defendant was likely to
actually commit attempted murder or murder as he threatened to do. The trial court
weighed the expert’s opinion as to the lack of violence in defendant’s communications
and actions, based only on his review of the case, against the beliefs of K.N. and

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defendant’s three children who had witnessed the offenses and known defendant for
many years. On appeal, it is not our role to reassess credibility determinations; and the
applicable standard of review requires us to uphold a trial court’s findings if there is
substantial evidence supporting them. (People v. Gerson, supra, 80 Cal.App.5th at
p. 1086 [appellate court could not reweigh evidence to overturn trial court’s
determination that the defendant failed to establish his eligibility for diversion]; see also
People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [“A substantial evidence inquiry
examines the record in the light most favorable to the judgment and upholds it if the
record contains reasonable, credible evidence of solid value upon which a reasonable trier
of fact could have relied in reaching the conclusion in question.”].) Here, as we have
explained, there is substantial evidence of defendant’s dangerous and violent conduct
towards K.N.
While reasonable people may disagree about defendant’s potential risk, we do not
substitute our judgment for that of the trial court where supported by substantial
evidence. (See People v. Brown, supra, 101 Cal.App.5th at pp. 123–124.) As stated, we
conclude such evidence supports the court’s order denying mental health diversion, and it
was not an abuse of discretion.
DISPOSITION
The order is affirmed.

HILL, P. J.
WE CONCUR:

DETJEN, J.

SANDHU, J.

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