California’s Penal Code permits its courts to grant pretrial diversion to defendants who have been diagnosed with certain mental disorders. Jeanette Sarmiento was arrested in conjunction with an attempted liquor store robbery, and because she had post-traumatic stress disorder (PTSD), additional mental health problems and complications from methamphetamine use, she petitioned the court for a mental health diversion.

San Diego County Superior Court Judge Dwayne K. Moring denied her request for two main reasons. First, Sarmiento had previously received treatment but was unable to remain drug-free after her release from a substance abuse program. Second, the judge found that she “pose an unreasonable risk of danger to the public,” even though he did not find that she was likely to commit a serious and violent “super strike offense” as required by statute. Moring concluded that Sarmiento’s “inability to remain drug-free after prior participation in treatment” indicated “she would not respond well to mental health treatment.” The judge believed that “past performance is the best indicator of future performance and success.”

After her petition was denied, Sarmiento appealed. In a 2-1 opinion, with a dissent by Acting Presiding Justice Joan K. Irion, Justice William Dato of Division One of California’s Fourth District Court of Appeal authored the majority opinion that directed the trial court to grant Sarmiento’s mental health diversion request. Dato wrote, “As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence. Applying these principles, neither of the reasons relied on by the trial court provide a proper basis to deny diversion.”

Dato’s opinion began with a historical account of the petitioner’s mental health problems, which began when she was a five-year-old child who was repeatedly sexually assaulted by her stepbrother. Her father’s death when she was 13 led her to threaten suicide and use methamphetamines, which she also started to sell. After her arrest for selling drugs, she was sent to and completed a 120-day residential drug treatment program, which led to six years of sobriety. It didn’t last. Two robbery convictions and four hospitalizations followed. But, the court said Sarmiento was never treated for her “primary mental health diagnosis,” which was PTSD resulting from her childhood sexual abuse. She relapsed and resumed taking drugs shortly before her most recent robbery.

After her arrest she was given a psychiatric evaluation by Dr. Cynthia Boyd. Boyd found that Sarmiento suffered from both a major depressive disorder and PTSD. She said she thought the petitioner “could be safely treated in the community and the “symptoms of mental disorder motivating the criminal behavior would respond to mental health treatment.”

The prosecutors opposed Boyd’s recommendations but did not provide any evidence in support of their position. They merely argued that her mental health problems did not “play a significant role” in her robbery. The People also said there was no evidence that her symptoms would respond to a treatment program and that she would still pose “an unreasonable risk of danger to the public.”

The opinion then provided additional information about the State’s mental health diversion program, which the legislature had created in 2018. It explained that the diversion program was created because of concerns that “incarceration only serves to aggravate preexisting conditions and does little to deter future lawlessness.” A 2023 amendment now requires courts to find that a candidate for diversion is both eligible and suitable for inclusion in the opinion of a mental health expert and that he or she will comply with treatment requirements. The legislature also created a “presumption” that the diagnosed mental health disorder was “a significant factor” in the commission of the crime.

Dato then discounted trial judge Moring’s belief that Sarmiento’s past failures would be repeated in future treatments. He wrote that scientific research into brain function now holds that a lack of willpower or moral principles does not cause drug addiction. Scientists now believe that drug addiction is “a complex disease,” with common relapses that “do not mean that treatment doesn’t work.” He repeated that the petitioner needed treatment for her PTSD and depression, the primary causes of her condition. He wrote, “Here, the alleged failure of prior drug treatment programs says nothing about any inadequacy of the proposed plan to address Sarmiento’s mental health needs.”

Next, Dato addressed Moring’s conclusion that Sarmiento would pose “an unreasonable risk of danger to public safety . . . if treated in the community.” He found “no substantial evidence to support a conclusion that Sarmiento was likely to commit a super strike offense. Indeed, the charged offense in this case involved no evidence of a weapon or threat of violence,” he noted.

Judge Irion dissented, writing that the appellate court should never have agreed to review the writ that directed the Superior Court to grant a mental health diversion. She said that a writ of mandate should not be issued “for the purpose of directing how discretion is exercised” and concluded it was “within the trial court’s decision to make and it does so based on an assumed set of facts contradicted by the record.”

She said the majority opinion “ignores facts that refute its premises and conclusions, and misconstrues the mental health diversion statute.” She also wrote that Sarmiento did not show she would “suffer harm” if diversion was denied. She said the petitioner’s case was a “routine matter” and that there was no basis for finding the trial court abused its discretion and wrote that the “trial court properly considered Sarmiento’s relapses into substance abuse and criminality after treatment in determining whether she would respond to mental health treatment.”

Despite the strong dissent, the appellate court issued the writ and Sarmiento will get her mental health diversion. Hopefully, her future treatment will address the root causes of her condition.