Unreported / Non-Citable
Background
A Kern County amended information charged Adam Esparza with second degree robbery and alleged a prior strike, a prior serious felony conviction, and three aggravating factors. He moved for mental health diversion under Penal Code section 1001.36, but the trial court denied the motion. A jury later acquitted him of robbery and convicted him of attempted second degree robbery. At sentencing, the court dismissed the prior serious felony allegation, declined to strike the prior strike, found one aggravating factor true, and imposed four years, consisting of the midterm doubled under the Three Strikes law. Esparza filed a timely notice of appeal on September 15, 2025.
The prosecution's evidence described Esparza and another person entering a department store on August 23, 2022. A loss prevention supervisor saw them select and try on shoes, approached Esparza, and told him to put the shoes down. According to the supervisor, Esparza tried to go around him and said, in a rapid and agitated manner, "I'll shoot you." Esparza then left with the shoes. The appeal, however, concerned the diversion ruling rather than the sufficiency of the evidence supporting the conviction.
Esparza's diversion motion included an evaluation by clinical and forensic psychologist Dr. Michael Musacco, who diagnosed stimulant use disorder, antisocial personality disorder, and major depressive disorder. The report recognized that antisocial personality disorder is excluded as a qualifying condition but concluded that depression and stimulant use disorder could still support diversion. At the hearing, the trial court focused on the excluded diagnosis, stated that Esparza would not qualify and that "No one will take him," and denied the motion for failing to establish a prima facie case.
The Court’s Holding
The Court of Appeal agreed with both parties that the trial court applied the wrong eligibility rule. Section 1001.36 permits pretrial diversion when a defendant is both eligible and suitable. Eligibility requires a recent diagnosis by a qualified mental health expert of a qualifying DSM disorder and a finding that the disorder was a significant factor in the charged offense. Although the statute excludes antisocial personality disorder as a basis for eligibility, Negron v. Superior Court establishes that an excluded diagnosis does not categorically prevent a defendant from establishing eligibility through a different qualifying disorder.
The panel found that principle directly applicable. Esparza's stimulant use disorder and major depressive disorder were qualifying DSM disorders, and the record showed that the trial court accepted those diagnoses as proven. Nevertheless, the court denied eligibility solely because he also had antisocial personality disorder. That treatment of the excluded diagnosis as an automatic bar was legal error. The panel reviewed the statutory-eligibility question de novo, while recognizing that diversion rulings ordinarily receive abuse-of-discretion review and factual findings receive substantial-evidence review.
Because the trial court stopped at its erroneous ineligibility determination, it never decided whether Esparza's mental disorder significantly contributed to the offense or whether he satisfied the suitability requirements, including treatment responsiveness, consent, compliance, and public safety. The court therefore conditionally reversed and remanded for a new diversion hearing. It expressed no view on the remaining requirements, the relationship among included and excluded disorders, or whether diversion should be granted. It also declined to reach Esparza's separate argument that the statement "No one will take him" lacked sufficient evidentiary support.
Key Takeaways
- An antisocial personality disorder diagnosis cannot be used to establish diversion eligibility, but it does not automatically disqualify a defendant who has another qualifying mental disorder.
- The trial court erred by denying Esparza's motion solely because of his excluded diagnosis without evaluating his qualifying stimulant use and major depressive disorders under the correct statutory rule.
- On remand, the trial court must consider the unresolved eligibility and suitability prerequisites rather than automatically grant diversion.
- The appellate court left open whether Esparza's disorders were a significant factor in the offense, whether he was suitable for diversion, and how any interrelationship among his diagnoses should affect those determinations.
- If Esparza is found ineligible or does not successfully complete diversion, his conviction and sentence will be reinstated; in all other respects, the judgment was affirmed.
Why It Matters
The decision applies Negron's distinction between relying on an excluded disorder and merely having one alongside qualifying disorders. A court cannot substitute a categorical exclusion for the individualized eligibility and suitability analysis required by section 1001.36. The parties agreed that the denial rested on that erroneous premise, and the panel ordered reconsideration rather than directing a particular diversion outcome.
The conditional disposition preserves the attempted robbery conviction and four-year sentence unless the statutory diversion process leads to a different result. It also leaves the trial court to make the factual and discretionary determinations it never reached, including treatment suitability and public safety, without an appellate prediction about how those issues should be resolved.