Reported / Citable
Background
Joseph Russo was charged in Siskiyou County with dissuading a witness by force or threat and animal cruelty after threatening his mother and punching his dog when she tried to call 911. He had a prior strike conviction for first-degree burglary. He sought pretrial mental health diversion under Penal Code section 1001.36, a statute that allows courts to divert qualifying defendants into treatment instead of prosecution.
Russo had documented mental health diagnoses — bipolar I disorder, PTSD, methamphetamine use disorder, and cannabis use disorder — and proposed placement in an Adult and Teen Challenge residential program, the same type of program he had completed in 2020. The prosecution opposed diversion, noting that Russo relapsed shortly after completing that earlier program, subsequently violated probation, and had failed to maintain medication compliance.
The trial court denied diversion, finding that although Russo might technically qualify, he was not a suitable candidate. The court emphasized that “the past portends the future” — Russo’s prior completion of the Adult and Teen Challenge program followed by immediate relapse showed the program had not addressed his needs and would not address them now. Russo pled no contest, received an eight-year sentence, and appealed.
The Court’s Holding
The Third District Court of Appeal affirmed, finding no abuse of discretion. The court acknowledged the trial court’s stated reasoning tracked the adequacy-of-treatment framework under Penal Code section 1001.36, subdivision (f)(1)(A)(i) — which asks whether the proposed treatment will actually meet the defendant’s specialized mental health needs — rather than the suitability factors in subdivision (c). But that did not constitute error, because a court may deny diversion on adequacy grounds as well.
The key distinction from Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, on which Russo relied, was that the defendant in Sarmiento proposed different treatment than had previously failed. Russo, by contrast, proposed returning to the identical Adult and Teen Challenge program that he had already completed without lasting benefit. Without showing how a second attempt would be different — without a meaningful “exit strategy” — the trial court was entitled to conclude the proposed plan would not meet Russo’s needs.
The appellate court reiterated that it reviews denial of diversion for abuse of discretion and presumes the trial court knew and applied the law. Finding no arbitrary or capricious decision, it affirmed the judgment.
Key Takeaways
- Mental health diversion under Penal Code section 1001.36 can be denied on adequacy-of-treatment grounds (subd. (f)(1)(A)(i)) — the court need not find the defendant ineligible or unsuitable under subdivisions (b) and (c) if the proposed treatment is unlikely to work.
- A defendant who proposes repeating a program they already completed and failed must explain concretely how the second attempt will differ; simply returning to the same program is insufficient.
- Courts may consider a defendant’s prior treatment performance in assessing whether a proposed plan will meet their specialized needs — prior failure in the same program is direct and relevant evidence.
- The distinction from Sarmiento is meaningful: that case involved materially different proposed treatment addressing mental health rather than just substance abuse; a defendant should frame diversion proposals to highlight how the new treatment differs from what failed before.
- Defense counsel seeking diversion for clients with prior treatment history should document why the current proposal addresses gaps in prior treatment — a therapeutic evaluation explaining the differences is critical.
Why It Matters
Mental health diversion under section 1001.36 has become an increasingly important tool for resolving criminal cases involving defendants with serious psychiatric diagnoses. This decision clarifies that the adequacy-of-treatment inquiry is a meaningful gatekeeping function, not a rubber stamp. Courts can look past a defendant’s eligibility and nominal suitability to ask whether the specific proposed plan will actually work for this specific defendant — and evidence that it has failed before is powerful grounds for denial.
For practitioners, the case is a practical roadmap: diversion proposals that rely on a previously attempted and failed program without explaining what is different will face an uphill battle. Conversely, proposals backed by expert evaluation that squarely addresses why the current plan will succeed where earlier efforts did not stand on much firmer ground. The ruling gives trial courts meaningful discretion to deny diversion when the evidence supports skepticism about rehabilitation prospects.