A trial court abuses its discretion in denying Mental Health Diversion on the basis a non-mental health factor was more of a motivating, casual, or contributing factor than defendant’s mental health.

 

Flareau v. Superior Court, 4^th Dist., Div.2 (02/18/2026)

 

Flareau is a gay man from a conservative family.  He has kept his identity as a gay man secret from his parents.  He takes psychiatric medications prescribed by his doctor for depression and anxiety.

His sister, during sibling arguments, habitually tosses homophobic slurs and threatens to “out” Flareau to their parents.  During one sibling fight, Flareau told sister to leave him alone or “I am going to shoot you.”  Sister responded by taunting Flareau to “just shoot,” her.  Flareau fetched a gun and pointed it at sister.  He also obtained a taser and followed her through the house while “dry stunning,” the taser.  For this, Flareau was charged with a host of assault and threat felonies.

He petitioned for mental health diversion under PC §1001.36.  In support, Flareau submitted a psychologist’s report that Flareau suffered from an “unspecified mood affective disorder,” whose symptoms motivated his criminal behavior and would respond to individual psychotherapy, a treatment form Flareau had never received.  Flareau was willing to waive time and agreed to comply with treatment.  The prosecution submitted no evidence but opposed the petition.

The trial court denied Flareau’s petition.  In doing so, the court found, by clear and convincing evidence, that sister’s antagonizing behavior was a greater factor in the criminal behavior than Flareau’s mental health disorder(s).  It noted that Flareau was receiving mental health treatment, medication, at the time of the event and that he had no criminal history.  The trial applied its powers of deduction to these facts and queried, “if his criminal conduct is due to his mental health issues, wouldn’t he have a criminal history?”  It concluded that Flareau’s case did not “fall within the spirit,” of Penal Code section 1001.36.

Flareau petitioned for a writ of mandate.  This panel grants the petition and issues its mandate that the trial court hold another hearing, this time applying the law as written section 1001.36, instead of the trial court’s incantations of the “spirit,” of section 1001.36.

The opinion provides a very clear and concise description of section 1001.36.  The section states that trial courts “may” grant mental health diversion when a defendant is [1] eligible, and [2] suitable. 

Eligibility under the statute means [a] the defendant has been diagnosed with a recognized Mental Health Disorder (MHD), and [b] the MHD was a significant factor in the commission of the charged offense(s).  In step [b], the court “shall” find the MHD was a significant factor unless there is clear and convincing evidence is was not a motivating factor, causal factor, or contributing factor.

A defendant is suitable if [a] a qualified mental health expert opines the MHD would respond to treatment, [b] the defendant waives their speedy trial rights, [c] agrees to comply with treatment, and [d] will not pose an unreasonable risk of danger to public safety. 

An eligible and suitable defendant may still be denied diversion under the court’s “residual discretion,” a consequence of the statutory wording saying the court “may” grant diversion to an eligible and suitable defendant.  The use of “may,” instead of “shall,” implies legal authority to deny even an eligible and suitable defendant.

In this case, the basis for the trial court’s denial was less than clear.  The panel finds the trial court’s denial was based in “residual discretion,” not that Flareau was ineligible or unsuitable.  A denial under the residual discretion power is limited to situations where the purposes of the mental health diversion statute would not be achieved and must be accompanied by a statement of reasons why diversion would not meet the purposes of the statute. 

Residual discretion decisions are reviewed under the abuse-of-discretion standard. A court abuses its discretion when it applies the wrong legal standard or bases the decision on facts unsupported by substantial evidence.

The panel finds the trial court abused its discretion thrice.  It notes the statute was intended to apply as “broadly as possible,” to keep people with MHD from entering and reentering the system and to get folks with MHDs needed treatment. 

The trial court abused it discretion in denying Flareau on the basis it found sister’s taunts and threats a greater motivating factor than Flareau’s MHD.  The panel notes the statute does not require the MHD to be the “greatest” motivating factor, just “a” motivating, causal, or contributing factor.  It also finds problems with the trial court’s reasoning that because Flareau was on meds for his MHD at the time of the alleged crime, placing him on diversion would not achieve the goals of the statute, noting that the diversion treatment plan stressed individual psychoanalysis, something Flareau had never received.

Because the trial court used the wrong legal standard and failed to specify a legally sufficient basis for its denial, the case is remanded to the trial court to hold another hearing.  And this time apply the law as written and interpreted.