The opinion
Filed 1/30/25 P. v. Pasa CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B335449
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA108285)
v.
LEFULEFU KAIO PASA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathryn Solorzano, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Lefulefu Pasa was charged with crimes arising out of his
assault on a woman. After the trial court denied Pasa’s motion
for mental health diversion under Penal Code1 section 1001.36,
he pled no contest to assault by means of force likely to produce
great bodily injury. Pasa appeals, contending primarily that the
trial court abused its discretion by finding him unsuitable for
diversion because he posed an unreasonable risk of danger to
public safety. We reject his contention and affirm the judgment.
BACKGROUND
I. Evidence at preliminary hearing
On April 14, 2023, the victim Hanh Dinh was at a liquor
store. Pasa was also at the store. He followed Dinh, and they
had a verbal altercation. Pasa punched Dinh in the face,
knocking her to the ground. When Dinh tried to get up, Pasa
dragged her to the back of the store and slammed her face into a
glass display case, causing the display case to shatter. Dinh
suffered lacerations to her leg and wrist, and a puncture wound
to her elbow. The laceration to her wrist severed an artery,
nerves, and tendons. The injuries affected Dinh’s ability to
continue her work as a nail technician and left her with a
permanent scar.
After Pasa was arrested, he told a police officer that he did
not remember being at the liquor store, but he identified himself
from video surveillance of the incident. Pasa said he had two 32-
ounce beers and a cocktail before the incident, adding he did not
feel like himself that day.
1
All further undesignated statutory references are to the
Penal Code.
2
II. Motion for mental health diversion
An information charged Pasa with mayhem (§ 203; count
1), battery with serious bodily injury (§ 243, subd. (d); count 2),
and assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4); count 3).
Pasa moved for mental health diversion under section
1001.36. With his motion, Pasa submitted the report of Dr. Camy
Kingston, a forensic psychiatrist. According to the report, Pasa
was 26 years old when he committed the crimes. He denied a
history of mental health treatment, although he endorsed having
depressive symptoms for which he had been self-medicating with
alcohol. In addition to alcohol, Pasa said he used marijuana,
cocaine, and Xanax. He began drinking in middle school, and his
drinking “took off” in college. Per day, Pasa consumed four to five
“40s (Mickeys),” three to four blunts, five or six Xanax pills, and
an eight ball of cocaine when he lived in Texas, where his family
had moved when he was 22 years old. On the day of the incident,
Pasa had smoked weed and taken three to four “40s,” two Xanax
pills, and a “Buzzball.” Pasa did not recall the specifics of the
incident.
Pasa graduated from high school and attended community
college for two years, although he struggled in school. He has
had various jobs and was working at a warehouse at the time of
the incident. He had been arrested once before for a “ ‘bar
fight,’ ” but he had no prior convictions.
After interviewing and evaluating Pasa, Dr. Kingston
concluded he did not meet the criteria for an intellectual
disability. But he had “deficits” and “impairments” across
cognitive domains, visual mental speed, verbal processing speed,
3
and language abilities. His learning, memory, and executive
functioning also were “compromised.”
Dr. Kingston found that Pasa met the criteria for “alcohol
use disorder, cannabis use disorder, and sedative, hypnotic and
anxiolytic use disorder.” Further, his abuse of substances “likely
played a significant role in the commission of the charged
offenses.” The doctor noted that substance abuse “treatment can
successfully control addiction,” and Pasa would likely benefit
from a dual diagnosis program which focused on both his mood
symptoms and his substance abuse. “If he can maintain his
sobriety and manage any potential mood symptoms, he should
not theoretically pose an unreasonable risk of danger to public
safety as defined in” section 1170.18.
At the hearing on Pasa’s motion, defense counsel
represented that she had found residential programs for her
client. The trial court, however, said it was inclined to deny the
motion based on the severity of the victim’s injuries and the
“unrelenting,” “unprovoked,” and “vicious” nature of the attack.
Noting that Pasa had severed the victim’s artery, the trial court
observed that he could have killed her. The trial court described
Dr. Kingston’s report as “weak” and her diagnosis unclear. In
response, defense counsel clarified that Pasa had impaired
executive functioning and cognitive impairment, and as to mental
illness and the Diagnostic and Statistical Manual of Mental
Disorders (DSM) diagnosis, “it is for alcohol use disorder,
cannabis use disorder, and . . . sedative hypnotic and anxiolytic
use disorder.”
The trial court found that Pasa was eligible for mental
health diversion but not suitable for it, because of “the nature of
the offense,” and indicated he was capable of committing a super
4
strike, namely, attempted murder. The trial court described
Pasa as exhibiting viciousness in his unprovoked and relentless
attack on a woman of slight stature, who was not the aggressor
and did not fight back.2 While the trial court noted it could
consider the opinion of a qualified mental health expert, the court
did not find that opinion persuasive. Accordingly, the trial court
denied the motion.
III. Pasa’s plea and sentence
On November 1, 2023, Pasa pled no contest to assault by
means of force likely to produce great bodily injury (§ 245, subd.
(a)(4)) and admitted he personally inflicted great bodily injury on
the victim (§ 12022.7, subd. (a)). That same day, the trial court
sentenced Pasa to three years in prison, suspended execution of
the sentence, placed Pasa on five years’ probation, and ordered
him to serve 365 days in a residential treatment program.
DISCUSSION
I. Overview of mental health diversion and standard of
review
Section 1001.36 authorizes pretrial mental health diversion
for defendants with qualifying mental disorders. (See generally
People v. Frahs (2020) 9 Cal.5th 618, 624, 626–627.) “ ‘Pretrial
diversion’ means the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process
from the point at which the accused is charged until adjudication,
to allow the defendant to undergo mental health treatment.”
2
The prosecutor represented that according to Pasa’s
booking sheet, Pasa weighed 350 pounds and was six feet four
inches tall.
5
(§ 1001.36, subd. (f)(1).) Section 1001.36’s purpose is to keep
people with mental disorders from entering and reentering the
criminal justice system while protecting public safety, to give
counties discretion in developing and implementing diversion
across a continuum of care settings, and to provide mental health
rehabilitative services. (§ 1001.35; see generally People v.
Qualkinbush (2022) 79 Cal.App.5th 879, 886.) The mental health
diversion program shall be applied as broadly as possible.
(Frahs, at p. 632.)
A defendant is eligible for pretrial diversion if two
eligibility requirements are met. First, the defendant has been
diagnosed with a mental disorder identified in the most recent
edition of the DSM, and defense counsel has provided evidence of
that disorder, including a diagnosis within the last five years by a
qualified mental health expert. (§ 1001.36, subd. (b)(1).) Second,
the defendant’s disorder was a significant factor in the
commission of the charged offense. (§ 1001.36, subd. (b)(2).) If
the defendant has been diagnosed with a mental disorder, then a
court shall find that the disorder was a significant factor in the
commission of the offense unless there is clear and convincing
evidence it was not a motivating, causal or contributing factor to
the defendant’s involvement in the alleged offense. (Ibid.)
If a defendant satisfies the eligibility requirements, then
the court must consider the defendant’s suitability for pretrial
diversion, which requires meeting four criteria. (§ 1001.36, subd.
(c).) First, a mental health expert has found that the defendant’s
disorder would respond to mental health treatment. (§ 1001.36,
subd. (c)(1).) Second, the defendant consents to treatment.
(§ 1001.36, subd. (c)(2).) Third, the defendant agrees to comply
with treatment as a condition of diversion, unless the defendant
6
is incompetent to consent. (§ 1001.36, subd. (c)(3).) Fourth, 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)(4).) Section 1170.18, subdivision (c), defines
an “ ‘unreasonable risk of danger to public safety’ ” as “an
unreasonable risk” that the defendant will commit a new violent
felony known as a super strike. The super strikes are a sexually
violent offense, oral copulation with a child under 14 years old, a
lewd or lascivious act involving a child under 14 years old,
homicide, solicitation to commit murder, assault with a
machinegun on a peace officer or firefighter, possession of a
weapon of mass destruction, and any serious or violent felony
punishable by death or life without parole. (§§ 1001.36, subd.
(c)(4), 667, subd. (e)(2)(C)(iv).)
The trial court has discretion to order the defendant to
diversion if it finds the defendant both eligible and suitable.
(§ 1001.36, subd. (a); People v. Gerson (2022) 80 Cal.App.5th
1067, 1080 [“Ultimately, however, diversion under section
1001.36 is discretionary, not mandatory, even if all the
requirements are met.”].)
We review a trial court’s ruling on a motion for mental
health diversion for an abuse of discretion, but we review its
factual findings for substantial evidence. (People v. Whitmill
(2022) 86 Cal.App.5th 1138, 1147 (Whitmill).) “ ‘ “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.” ’ ” (People v. Doron (2023) 95
Cal.App.5th 1, 9.) “ ‘On appeal, we must view the evidence in the
light most favorable to the People and must presume in support
7
of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] ‘Although we
must ensure the evidence is reasonable, credible, and of solid
value, nonetheless it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or
falsity of the facts on which that determination depends.’ ”
(People v. Gerson, supra, 80 Cal.App.5th at p. 1079.)
II. The trial court did not abuse its discretion by denying the
motion for diversion
Pasa contends that the trial court here, first, committed an
error of law in finding him ineligible for mental health diversion
and, second, abused its discretion by finding him unsuitable for
mental health diversion. We disagree.
A. Eligibility
Pasa bases his first contention on statements the trial court
made expressing doubt that Dr. Kingston had clearly diagnosed
him with a mental disorder identified in the DSM.3 The trial
court, for example, questioned the doctor’s diagnosis, saying, “The
report itself does indicate alcohol abuse, but an alcohol disorder?
I’m not convinced of that at all, not by reading this report.
Marijuana use disorder? Again, these are D.S.M. disorders. The
abuse of Xanax? … This is your burden. It’s certainly one that I
don’t believe has been satisfied. Again, I’m not concerned in
telling you … what you need to do to shore this up, because
frankly, in the end, I’m gonna come up to the same conclusion.”
3
There is no dispute on appeal that Pasa had a qualifying
mental disorder.
8
Notwithstanding the trial court’s apparent doubts that
Pasa met the eligibility requirements, once Dr. Kingston
diagnosed Pasa with a qualifying mental disorder, the trial court
had to find it was a significant factor in the commission of the
charged offense, absent clear and convincing evidence his
disorder was not a motivating, causal or contributing factor to his
involvement in the alleged offenses. (§ 1001.36, subd. (c).) The
trial court made no such finding here by clear and convincing
evidence. Therefore, Pasa satisfied the eligibility requirements,
notwithstanding any doubts the trial court had.
Even if the trial court was mistaken about eligibility
requirements, the error was harmless. (See, e.g., People v. Watts
(2022) 79 Cal.App.5th 830, 836 [court’s erroneous belief that
prosecutorial consent to diversion was necessary was harmless];
People v. Jefferson (2019) 38 Cal.App.5th 399, 409 [remand for
trial court to consider defendant’s eligibility for diversion
unnecessary where trial court made comments clearly indicating
it would find defendant ineligible].) Notwithstanding the trial
court’s doubts about Pasa’s diagnosis, it found him eligible for
mental health diversion, stating, “He is eligible because the
offense is not an offense that is specified as an ineligible offense.”
Therefore, any misunderstanding the trial court had regarding
eligibility was harmless because the trial court considered the
second prong of the diversion analysis, i.e., Pasa’s suitability for
diversion, and denied diversion based on Pasa’s unsuitability for
diversion and not on his ineligibility for it.
B. Suitability
Pasa next contends that the trial court abused its
discretion in denying his motion because there was insufficient
evidence he was unsuitable for diversion on the ground he posed
9
an unreasonable risk to public safety. Pasa initially argues that
the trial court again misunderstood the law. However, we
presume a trial court correctly understood applicable law unless
the record affirmatively shows otherwise. (People v. Stowell
(2003) 31 Cal.4th 1107, 1114; People v. Giordano (2007) 42
Cal.4th 644, 666; People v. Dawson (2021) 69 Cal.App.5th 583,
592 [judge’s statements must disclose incorrect concept of
relevant law embodied in the basic ruling and not merely in
secondary remarks].)
Pasa argues that the trial court misunderstood that to find
him unsuitable for diversion, it had to find he would pose an
unreasonable risk of danger to public safety, as defined in section
1170.18, if treated in the community.4 (§ 1001.36, subd. (c)(4).)
Ultimately, this requires an assessment whether the defendant is
“ ‘likely to’ ” commit a super strike. (People v. Moine (2021) 62
Cal.App.5th 440, 450 (Moine).) Here, however, the trial court
said that the “nature of this offense … indicates that [Pasa] is
capable of committing a super strike, which would be an
attempted 187.” (Italics added.) Although the trial court did not
track the statute’s language, its failure to do so fails to establish
that the trial court misunderstood the law. Rather, the entirety
of the trial court’s comments show it focused on the “unrelenting,”
“unprovoked,” and “vicious” nature of Pasa’s crime. In doing so,
the trial court impliedly found that Pasa posed an unreasonable
risk of danger to public safety because he was likely to commit a
super strike, even if the trial court did not use those words. We
therefore decline to find that the trial court’s stray comment
4
There is no dispute that Pasa satisfied the other suitability
criteria in subdivision (c) of section 1001.36.
10
reflected a misunderstanding of the law that affected its basic
ruling.
Next, Pasa argues there is insufficient evidence he posed
an unreasonable danger to public safety on the ground he was
likely to commit a super strike. In making this determination,
the “court may consider the opinions of the district attorney, the
defense, or a qualified mental health expert, and may consider
the defendant’s treatment plan, the defendant’s violence and
criminal history, the current charged offense, and any other
factors that the court deems appropriate.” (§ 1001.36, subd.
(c)(4).) Nothing in the statute “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.”
(People v. Bunas (2022) 79 Cal.App.5th 840, 862; accord, People v.
Graham (2024) 102 Cal.App.5th 787, 799 [nature and manner of
charged crimes, particularly two super strikes, rendered
defendant likely to commit another super strike].) In Bunas, at
pages 850 to 851, for example, the defendant hit his girlfriend
with a flashlight, dragged her out of a room, and struck her in the
head with a machete. The appellate court held that the trial
court did not err by denying diversion “ ‘based solely on the
offense.’ ” (Id. at p. 862.)
Similarly here, the trial court relied primarily or entirely
on the nature of the charged offenses in denying Pasa’s diversion
motion. It found Pasa’s attack on the victim to be unprovoked,
unrelenting, and so vicious that he could have killed her.
Substantial evidence supports that finding. The evidence was
that Pasa approached the victim, whom he did not know, in a
store. He punched her in the face, dragged her to a glass display
case, and slammed her into it so hard that the case shattered,
11
and glass shards severed the victim’s artery. We therefore
cannot find that the trial court abused its discretion by denying
diversion based on the random, violent nature of the attack.
In response, Pasa argues that the absence of prior
convictions shows he is unlikely to commit a super strike in the
future. However, while Pasa does not have any prior convictions,
he admitted to Dr. Kingston that he had once been arrested after
a bar fight. Therefore, Pasa did have some history of prior
violence, which also supports the trial court’s unsuitability
finding.
To further support his argument that his lack of a prior
conviction establishes he was not an unreasonable risk to public
safety, Pasa cites several cases: People v. Oneal (2021) 64
Cal.App.5th 581, Moine, supra, 62 Cal.App.5th 440, and
Whitmill, supra, 86 Cal.App.5th 1138.
In People v. Oneal, supra, 64 Cal.App.5th 581, the
defendant was charged with various crimes involving two
incidents. In the first incident, the defendant entered a woman’s
apartment and asked to use the phone, but left when she said a
man was in the house. (Id. at p. 585.) The defendant then
confronted the woman outside and offered her money to use the
phone. He left when she threatened to call the police. In the
second incident, the defendant followed a woman and grabbed
her purse, although he was unsuccessful in taking it. (Ibid.) The
trial court denied the defendant’s diversion motion in part
“ ‘based on his behavior prior.’ ” (Id. at p. 593.) However, it was
undisputed that the defendant’s criminal history did not involve
any super strikes. The Oneal court therefore found it unclear
how that prior behavior supported the dangerousness finding.
(Ibid.) In this case, Pasa also did not have any criminal history
12
that involved a super strike. Even so, Oneal is not on point
because the trial court here did not rely on Pasa’s criminal
history to establish his dangerousness. It relied on the nature of
the current offense, which the trial court in Oneal did not do.
And, as we have said, a trial court may rely on the nature or
circumstances of the pending charges to deny diversion. (People
v. Bunas, supra, 79 Cal.App.5th at p. 862.)
Next, the defendant in Moine, supra, 62 Cal.App.5th 440,
was charged with assault and criminal threats. The assault
charge arose out of Moine’s fistfight with another person after
they disagreed on whether a television in a medical facility’s
waiting room should be on. The criminal threats charges
happened after Moine, unhappy with a prescription he was given
while he was at a medical facility, threatened to shoot people.
(Id. at pp. 444–445.) The trial court denied Moine’s diversion
motion because his current offenses involved “ ‘acts of violence.’ ”
(Id. at p. 447.) The appellate court, however, found that the
record did not support a finding that Moine was likely to commit
a super strike, because the pending charges were not super
strikes, two psychiatrists had found that Moine posed a low risk
of committing assault, and his prior criminal history consisted
merely of four misdemeanor convictions (three relating to drug or
alcohol related offenses and one hit and run). (Id. at p. 450.)
Moine is also distinguishable. First, two psychiatrists
opined that the defendant posed a low risk of committing another
assault. In contrast, Dr. Kingston found that if Pasa “can
maintain his sobriety and manage any potential mood symptoms,
he should not theoretically pose an unreasonable risk of danger
to public safety.” This fell short of the clear medical findings in
Moine that the defendant posed a low risk of dangerousness, and
13
therefore justified the trial court’s finding here that Dr.
Kingston’s opinion was unpersuasive. Second, Moine is
distinguishable because the nature of Pasa’s current offense
involved extreme violence, even if it was not a super strike.
To the extent that Pasa cites Moine for the principle that
the pending offenses must be super strikes to make a
dangerousness finding, we disagree. The statute already
disqualifies defendants charged with certain offenses, including
some super strikes such as murder. (§ 1001.36, subd. (d).)
Therefore, being charged with certain super strikes already
renders defendants ineligible as a matter of law for diversion.
But nothing in the statute suggests that being charged with a
super strike is a prerequisite to a finding that a defendant poses
an unreasonable risk to public safety, even if such a charge might
weigh in favor of an unsuitability finding.
In Whitmill, supra, 86 Cal.App.5th at pages 1142 to 1143,
the defendant, who had indicated he was not feeling well, warned
a friend not to “ ‘walk up’ ” on him, fired a gunshot into the air,
and then told his girlfriend he would kill her. He was charged
with being a felon in possession of a firearm, discharging a
firearm with gross negligence, and criminal threats. (Id. at
pp. 1143–1144.) The trial court denied the defendant’s diversion
motion on the ground that his threat to kill and firing a gun into
the air demonstrated he was likely to commit a super strike.
(Id. at p. 1147.) The appellate court disagreed based on the
defendant’s record of nonviolent drug offenses. Further, the
totality of circumstances surrounding the current offenses did not
suggest he was likely to commit a super strike. (Id. at pp. 1151–
1156.) Whitmill is also distinguishable. Although Pasa had no
prior convictions, the circumstances surrounding his current
14
offenses were very violent. Pasa did not stop at threats like the
Whitmill defendant. Pasa violently attacked a stranger in a
store, inflicting severe injuries on her.
Finally, Pasa argues that the trial court “signed off on” a
plea deal that “looks an awful lot like mental health diversion
while denying” him the benefits of diversion. He thus notes the
“logical[ ] inconsistency” in denying him mental health diversion
on the ground he was likely to commit a super strike, while
simultaneously releasing him to the same residential treatment
center he would have entered had he been granted diversion.
Pasa again cites Moine, supra, 62 Cal.App.5th at page 451, which
found a logical inconsistency in denying diversion on the ground
the defendant was likely to commit a super strike, while
releasing him into the community on a bond which required a
finding he was not likely to inflict great bodily injury on persons
in the community. Here, however, Pasa was released to a
residential treatment program, and the trial court made no
similar finding about the likelihood he would inflict great bodily
injury on persons in the community. Also, the trial court said it
disagreed “with the offer in this case, but that’s not for me.”5 In
any event, any seeming inconsistency in denying Pasa diversion
but accepting a plea that allowed him to go to the residential
treatment facility he would have gone to had diversion been
granted is an insufficient ground to find an abuse of discretion.
5
It is therefore unclear what the trial court thought
regarding its ability to reject the plea. (See generally People v.
Loya (2016) 1 Cal.App.5th 932, 947 [trial court may reject
negotiated plea agreement if it believes it is not fair, but it may
not change agreement without parties’ consent].)
15
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
ADAMS, J.
HANASONO, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
16