Opinion

People v. Khan CA6

Court
California Court of Appeal
Filed
May 5, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

Filed 5/5/25 P. v. Khan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051468

(Santa Clara County

Plaintiff and Respondent, Super. Ct. No. B1683806)

v.

MUHAMMAD KHAN,

Defendant and Appellant.

This is defendant Muhammad Khan’s second appeal from his conviction

by a jury for arson of an inhabited structure (Pen. Code,1 § 451, subd. (b))

with an enhancement that he committed the arson by use of a device

designed to accelerate the fire (§ 451.1, subd. (a)(5)). This appeal relates to a

mental health diversion proceeding (§ 1001.36) conducted on remand

following an earlier direct appeal.

In Khan’s first appeal, in accordance with People v. Frahs (2020) 9

Cal.5th 618 (Frahs), a different panel of this court (hereafter, the Khan court)

conditionally reversed the judgment and remanded the matter for a hearing

1 All further unspecified statutory references are to the Penal Code.

on Khan’s eligibility for mental health diversion under section 1001.36. (See

People v. Khan (Oct. 13, 2020, H045524) [nonpub. opn.] (Khan).2)

On remand, the trial court declined to grant Khan mental health

diversion, concluding that Kahn did not satisfy two of the four suitability

criteria in section 1001.36, subdivision (c), and regardless, diversion was

unwarranted.

In this second appeal, Khan contends the trial court abused its

discretion by denying him diversion because he had satisfied the eligibility

and suitability criteria under section 1001.36 and the court’s findings to the

contrary were not supported by substantial evidence.

For the reasons explained below, we affirm the judgment.

I. FACTS AND PROCEDURAL BACKGROUND

A. Trial Evidence

A detailed description of the evidence presented at Khan’s trial appears

in the Khan opinion. (Khan, supra, H045524.) Both parties in this appeal

rely on the facts of Khan’s offense as summarized in that opinion. Under

these circumstances, we incorporate into this opinion the Khan court’s

description of the trial evidence. (Ibid.)

2 The October 2020 Khan opinion is included in the instant appellate

record. Additionally, on our own motion, we take judicial notice of that

opinion. (See Evid. Code, §§ 452, subd. (d), 459.) The Khan opinion followed

a grant of review by the California Supreme Court of this court’s initial

opinion, which preceded Frahs. The initial opinion affirmed the judgment,

concluding that section 1001.36 did not apply retroactively to

Khan. Pursuant to an order of the Supreme Court, this court vacated its

initial opinion and reconsidered the case in light of Frahs. After receiving

supplemental briefing, this court issued its October 2020 Khan opinion and

remanded the matter for a hearing under section 1001.36.

2

Briefly, in November 2015, Khan released several cockroaches inside

his place of employment. In December 2015, Khan’s employer terminated his

employment. About 6:15 a.m. on January 9, 2016, Khan set fire to the garage

of his former supervisor’s home using gasoline and rags or pieces of towel.

The former supervisor, his wife, and their daughter were sleeping inside the

home at the time. (See Khan, supra, H045524.)

B. Conviction and Sentence

The jury found Kahn guilty of arson of an inhabited structure (§ 451,

subd. (b)) and found true an enhancement allegation that Khan committed

the arson using a device designed to accelerate the fire (§ 451.1, subd. (a)(5)).

(Khan, supra, H045524.)

The trial court sentenced Khan to nine years in prison, comprising five

years for the arson conviction plus four years for the sentence enhancement.

(Khan, supra, H045524.)

C. First Appeal

While Khan’s direct appeal was pending, the Legislature enacted

section 1001.36, which provides for pretrial diversion of persons with mental

disorders. (See Khan, supra, H045524; Stats. 2018, ch. 34, § 24.) In Frahs,

our Supreme Court held that section 1001.36 applies retroactively to nonfinal

judgments. (Frahs, supra, 9 Cal.5th at p. 640.)

After our Supreme Court decided Frahs, the Khan court concluded that

section 1001.36 applied to this case and Khan seemingly satisfied a threshold

eligibility requirement for diversion (i.e., he suffered from a qualifying

mental disorder). The Khan court based its conclusion on an evaluating

psychologist’s report (prepared in December 2017 for Khan’s sentencing

(§ 457)) that suggested Khan had developed major depressive disorder in the

months before the arson offense. (Khan, supra, H045524.) Accordingly, the

3

Khan court conditionally reversed the judgment and remanded for the trial

court to consider Khan’s eligibility for diversion under section 1001.36.

(Khan, supra, H045524.)

D. Remand Proceedings

On remand, in April 2023, Khan (through his public defender) filed an

application for mental health diversion (application). Khan contended he is

eligible for diversion under section 1001.36, subdivision (b). Based on the

December 2017 psychologist’s report by Dr. Robert Perez, Khan asserted that

his “arson offense was a direct product of his mental illness and substance

abuse” and that “[o]ver the course of the three to six months preceding the

incident, [he] clearly developed a significant psychiatric illness (major

depressive disorder) and he ‘clearly experienced suicidal ideation on one or

more occasions prior to the offense.’ ” (Italics omitted.) Khan further

asserted: “On the specific date of the offense, [Khan] [] had been experiencing

increasing levels of depression and despair. At the time he was despondent,

having panic attacks, and considering suicide as a way out. [Khan] was

acting out based on severe depression and suicidal ideation; together with

confused thought processes, perception of reality, and decreased tolerance for

stress. Ultimately, he succumbed to the symptoms of his mental illness in

commission of the offense.”

Regarding the first suitability criterion listed in section 1001.36—

which requires that a qualified mental health expert opine the defendant’s

symptoms would respond to mental health treatment (§ 1001.36, subd.

(c)(1))—Khan contended he satisfied that criterion based on Dr. Perez’s

December 2017 report, a December 2022 behavioral health assessment

generated by marriage and family therapist Eric Covotta, and a March 2023

4

“memorandum – release plan” (capitalization, underscoring & boldface

omitted) authored by public defender social worker Don Le.3

Regarding the additional suitability criterion requiring that the

defendant will not pose an unreasonable risk of danger to public safety if

treated in the community (§ 1001.36, subd. (c)(4)), Khan noted that he had

received some mental health treatment while incarcerated posttrial, was

sober for seven years, “and the life stressors that arose in 2016 are either

unlikely to occur, or can be prevented through a structured re-entry to

society.” Khan further noted his lack of criminal history, his “decorated

academic history and pedigree,” his past “community and volunteer work,”

his positive conduct while incarcerated, his well-developed intellectual and

cognitive abilities, his support from family and friends, and his present

awareness of “the need to remain engaged in outpatient mental health

programming, clean and sober, obedient to the continued protective orders,

and in the company of his close knit and supportive family in Virginia.”

Additionally, Khan provided the trial court a March 2023 mental

health evaluation authored by licensed professional counselor Thomas

Delaney. Khan explained in his application that Delaney’s treatment

recommendations included outpatient treatment to help Khan “reacclimate to

the world and support his mental illness and substance abuse risks every

step of the way.” Khan described the plan as requiring him to “participate in

weekly outpatient” mental health treatment services and recommending that

3 Khan subsequently filed a supplemental pleading that included a

June 2023 letter by therapist Covotta clarifying a statement that he made in

his December 2022 assessment regarding Khan’s current symptoms of

depression and posttraumatic stress disorder. The trial court considered that

letter along with the other expert submissions when ruling on Khan’s

application.

5

he “work[] through [his] reported mental abuse in college and depression

issues to cope with social interaction.”4 Khan also described the support he

would receive during treatment from “his close knit and capable family.”

The Santa Clara County District Attorney filed an opposition to Khan’s

application for diversion. The district attorney conceded that Khan suffered

from a qualifying mental disorder that was a significant factor in his

commission of the arson (see § 1001.36, subd. (b)(1)–(2).) The district

attorney also conceded that Khan consented to diversion (see id., subd. (c)(2))

and had expressed a willingness to comply with treatment (see id., subd.

(c)(3)).

The district attorney, however, contested whether Khan had provided

proof that his symptoms would respond to mental health treatment (see

§ 1001.36, subd. (c)(1)). The district attorney further asserted that Khan

would pose an unreasonable risk of danger to public safety if he were treated

in the community (see id., subd. (c)(4)). The district attorney invoked “the

continuous, retaliatory nature of [Khan]’s actions” prior to and during his

offense, “the planning, preparation, and thought that [Khan] put into his

commission of the offense,” and “the dangerous nature of [Khan]’s actions

during the incident.”

In June and July 2023, the trial court heard oral argument from the

parties on Khan’s application and took the matter under submission.5

4 Although Khan’s application asserts that counselor Delaney

“specifically articulated a plan that would require [him] to participate in

weekly outpatient [m]ental [h]ealth [t]reatment [s]ervices (italics added),

Delaney’s recommendation did not state a frequency for the proposed

treatment, and we do not find any reference to “weekly” treatment in

Delaney’s evaluation.

5 The same bench officer presided at Khan’s trial and ruled on his

application for mental health diversion.

6

In September 2023, the trial court denied Khan’s application in an oral

ruling.

The trial court noted that the district attorney had conceded Khan’s

eligibility for diversion under the requirements set forth in section 1001.36,

subdivision (b). Nevertheless, regarding the suitability criteria in section

1001.36, subdivision (c), the court concluded that Khan had not demonstrated

his suitability for diversion under subdivision (c)(1).6

The trial court found that “Khan has provided no opinion of a qualified

mental health expert explaining how [his] symptoms of the mental health

disorder causing, contributing to, or motivating criminal behavior, would

respond to mental health treatment.” The court explained that Khan “did not

submit any specific treatment plan” or have an expert explain how he “would

respond to that specific treatment plan.” The court further opined that under

section 1001.36, subdivision (f)(1)(A)(i), it “is not satisfied that any plan of

Mr. Khan[’s] constitutes an inpatient or outpatient program of mental health

treatment that will meet the specialized mental health treatment needs of

Mr. Khan.”7

6 Section 1001.36, subdivision (c) provides in pertinent part: “For any

defendant who satisfies the eligibility requirements in subdivision (b), the

court must consider whether the defendant is suitable for pretrial diversion.

A defendant is suitable for pretrial diversion if all of the following criteria are

met: [¶] (1) In the opinion of a qualified mental health expert, the

defendant’s symptoms of the mental disorder causing, contributing to, or

motivating the criminal behavior would respond to mental health treatment.”

7 Section 1001.36, subdivision (f) provides in pertinent part: “(1)

‘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, subject to all of the following:

[¶] (A)(i) The court is satisfied that the recommended inpatient or outpatient

7

The trial court discussed Khan’s expert submissions and described its

reasons for concluding that Khan had not demonstrated suitability for

diversion under section 1001.36, subdivision (c)(1) or subdivision (f)(1)(A)(i).

The court explained that Dr. Perez’s December 2017 report “contained no

statement how Mr. Khan’s symptoms would respond to mental health

treatment.” The court further noted that the report included a description of

Khan’s preoffense psychiatric treatment and medications, but “[d]espite that

treatment, Mr. Khan committed the offense in this case.”

Regarding therapist Covotta’s December 2022 assessment and June

2023 letter, the trial court noted that Covotta did not describe any treatment

plan and only stated that Khan reported having treatment set up in Virginia,

as well as family support.

The trial court found that social worker Le’s March 2023 release plan

simply referenced counselor Delaney’s treatment recommendations and “did

not itself lay out any mental health treatment plan, and certainly did not

describe how Mr. Khan’s symptoms of the mental health disorder . . . would

respond to that mental health treatment.”

Regarding counselor Delaney’s March 2023 mental health evaluation,

the trial court noted inconsistencies between Khan’s past self-reporting to Dr.

Perez and his current statements to Delaney. The court also noted that

Delaney recommended “only that Mr. Khan participate in outpatient mental

health treatment services to assist him [to] reintegrate appropriately back

into mainstream society, to increase self-esteem, confidence and efficacy[, and

to] [w]ork[] through his reported sexual and mental abuse issues to cope with

social interaction.”

program of mental health treatment will meet the specialized mental health

treatment needs of the defendant.”

8

The trial court opined that Delaney’s treatment recommendation “is a

plan to reintegrate back into mainstream society, it is not a mental health

treatment plan for addressing any diagnosis of major depressive disorder,”

“the mental health disorder upon which this [application] is based.” The

court noted that Khan, in his self-reporting to Delaney, had “denied any

depression and [] any issues.” The court further noted that Delaney failed to

review Dr. Perez’s December 2017 report, “did not consider the circumstances

of the crime, or any evidence about the crime,” did not “describe Mr. Khan’s

symptoms of the major depressive disorder that purportedly caused,

contributed to, or motivated the criminal behavior,” and did not “render any

opinion that the symptoms that caused, contributed to, or motivated the

criminal behavior, would respond to mental health treatment.” The court

further concluded that Delaney’s treatment recommendation was

unsatisfactory as to meeting “the specialized mental health treatment needs

of the defendant.”

Additionally, and “[a]s an independent basis for denying the

application,” the trial court found that Khan is unsuitable for diversion under

section 1001.36, subdivision (c)(4), because he would pose an unreasonable

risk of danger to public safety.8

The trial court stated that it had considered the circumstances of

Khan’s offense and explained that the offense could have been charged as an

attempted homicide “based on the facts of the case and the evidence at trial.”

8 Section 1001.36, subdivision (c)(4) provides: “The defendant will not

pose an unreasonable risk of danger to public safety, as defined in [s]ection

1170.18, if treated in the community. 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.”

9

The court acknowledged that Khan had no previous criminal history but

noted Khan’s preoffense misconduct, revenge planning, and premeditation

that culminated in an escalatory attempt to burn his former supervisor’s

house down. The court further noted that Khan had recently self-reported

that he “now is, in effect, fine, with no depression and no symptoms. [¶] But

there is no evidence Mr. Khan took any medication or received any specific

mental health treatment in custody, or to address his diagnosis of major

depression disorder.” The court reiterated the lack of a relevant treatment

plan and its concern that Khan had committed the arson offense despite

having previously received psychiatric treatment and medication.

Considering the factors stated in section 1001.36, subdivision (c)(4),

“including the lack of a specific treatment plan,” the court found that Khan

“is likely to commit a super strike.”

Lastly, the trial court explained that even if the statute’s eligibility

requirements and suitability criteria are met, it retains the discretion to deny

mental health diversion. The court acknowledged the Legislature’s intent

that mental health diversion under section 1001.36 “apply as broadly as

possible,” and the statute’s purpose “to keep people with mental disorders

from entering and re-entering the criminal justice system, while protecting

public safety, to give counties discretion in developing and implementing

diversion across a continuum of care setting, and to provide mental health

rehabilitative services.”

After considering “all those purposes,” the trial court concluded that

even if the suitability criteria had been met in this case, it “would not

exercise [its] discretion to grant mental health diversion.” The court

reiterated that Khan had received treatment before “he committed this

premeditated, planned act of revenge” and had not “provided any expert

10

explanation of how the symptoms of the diagnosed major depressive disorder

caused the crime, and how those specific symptoms would respond to a

mental health treatment plan tailored to [him].” The court further opined

that Khan’s proposed plan for treatment related to his reintegration into

society is based on his unreliable self-reports.

Upon denying Khan’s application, the trial court (pursuant to the

remand directions in Khan) reinstated Khan’s conviction and original

sentence and ordered him transferred back to the California Department of

Corrections and Rehabilitation.

Khan appealed.

II. DISCUSSION

Khan claims the trial court abused its discretion when denying his

application for mental health diversion under section 1001.36 because “its

findings are not supported by substantial evidence.” He asserts that he

“submitted a treatment plan designed to treat his then-existing mental

health needs, which demonstrated that he would respond to treatment,” and

he “did not pose an unreasonable risk of danger to public safety.”

The Attorney General responds that the trial court correctly found,

based on substantial evidence, that Khan was not suitable for diversion

because he provided no opinion from a qualified expert explaining how the

symptoms of the mental health disorder underlying his criminal behavior

would respond to mental health treatment, and because he posed an

unreasonable risk to the community. The Attorney General further asserts

that Khan failed to challenge in his opening brief the trial court’s alternative

ruling that even if he had met the suitability criteria, the court would still

not exercise its discretion to grant diversion.

11

A. Legal Principles

“In 2018, the Legislature enacted sections 1001.35 and 1001.36 to

create a pretrial diversion program for defendants with certain mental health

disorders. [Citation.] Pretrial diversion ‘allows for the suspension of criminal

proceedings and potential dismissal of charges upon successful completion of

mental health treatment.’ ” (Vaughn v. Superior Court (2024) 105

Cal.App.5th 124, 133 (Vaughn).) “ ‘The stated purpose of this legislation 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.’ ” (Id. at p. 138.)

“Section 1001.36, subdivisions (b) and (c), sets forth the criteria for

eligibility and suitability for diversion. Eligibility entails satisfaction of two

prongs: (1) a defendant has been diagnosed with a recognized mental health

disorder, and (2) the disorder was ‘a significant factor in the commission of

the charged offense.’ (§ 1001.36, subd. (b)(2).) The second prong is

presumptively satisfied ‘unless there is clear and convincing evidence that

[the disorder] was not a motivating factor, causal factor, or contributing

factor to the defendant’s involvement in the alleged offense.’ ” (Vaughn,

supra, 105 Cal.App.5th at p. 133, fn. omitted.)

“Once eligibility is established, a trial court ‘must consider whether the

defendant is suitable for pretrial diversion.’ (§ 1001.36, subd. (c).) A

defendant is suitable if: (1) in the opinion of a qualified mental health expert,

the defendant’s mental health disorder would respond to treatment; (2) the

defendant consents to diversion and agrees to waive their speedy trial rights;

(3) the defendant agrees to comply with treatment requirements; and (4) the

defendant will not pose an ‘unreasonable risk of danger to public safety’ as

12

defined in section 1170.18 if treated in the community. (Id., subd. (c)(1)–(4).)”

(Vaughn, supra, 105 Cal.App.5th at p. 134.)

Section 1170.18 defines “ ‘unreasonable risk of danger to public safety’ ”

as “an unreasonable risk that the petitioner will commit a new violent felony”

within the meaning of section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd.

(c).) That provision of section 667 sets forth eight categories of offenses that

are colloquially referred to as “super strikes,” including “[a]ny homicide

offense, including any attempted homicide offense, defined in [s]ections 187

to 191.5, inclusive.” (§ 667, subd. (e)(2)(C)(iv)(IV); People v. Moine (2021) 62

Cal.App.5th 440, 449 [noting that the “ ‘ “super strikes” ’ ” include murder

and attempted murder].)

“If the defendant is both eligible and suitable, the trial court must also

be satisfied ‘that the recommended inpatient or outpatient program of mental

health treatment will meet the specialized mental health treatment needs of

the defendant.’ ” (Vaughn, supra, 105 Cal.App.5th at p. 134, citing § 1001.36,

subd. (f)(1)(A)(i) & Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882,

892 [“This is not an additional eligibility or suitability requirement the

defendant must meet. Rather, subdivision (f)(1) of section 1001.36 read as a

whole appears to contemplate an ongoing assessment to assure that

defendants will receive appropriate treatment for their particular conditions

as part of the diversion program.”].)

“Finally, the statute gives the trial court discretion to deny diversion

even if the statutory requirements are met: ‘[T]he court may, in its

discretion, . . . grant pretrial diversion to a defendant’ after the court

considers the two eligibility and four suitability requirements.” (Vaughn,

supra, 105 Cal.App.5th at p. 134, citing, inter alia, § 1001.36, subd. (a).)

“ ‘Ultimately [] diversion under section 1001.36 is discretionary, not

13

mandatory.’ ” (People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887.)

However, “[t]his residual discretion is not unfettered and must be exercised

‘ “consistent with the principles and purpose of the governing law.” ’ ”

(Vaughn, at p. 135.)

B. Standard of Review

We review a trial court’s ruling on mental health diversion for abuse of

discretion. (People v. Graham (2024) 102 Cal.App.5th 787, 795.) “ ‘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.’ ”

(Ibid.)

“We will uphold the trial court’s factual findings if supported by

substantial evidence.” (People v. Oneal (2021) 64 Cal.App.5th 581, 589.)

“ ‘ “Substantial evidence includes circumstantial evidence and any reasonable

inferences drawn from that evidence.” [Citation.] However, “[a] reasonable

inference may not be based on suspicion alone, or on imagination,

speculation, supposition, surmise, conjecture, or guesswork; a finding of fact

must be an inference drawn from evidence rather than a mere speculation as

to probabilities without evidence.” ’ ” (Vaughn, supra, 105 Cal.App.5th at

p. 135.)

“ ‘It is appellant’s burden on appeal to establish an abuse of discretion

and prejudice.’ ” (People v. Pacheco (2022) 75 Cal.App.5th 207, 213.)

C. Analysis

There is no dispute that Khan is eligible for mental health diversion

under section 1001.36, subdivision (b). The contested issue is Khan’s

suitability for diversion. We are not persuaded the trial court abused its

14

discretion in finding Khan unsuitable under the first criterion of section

1001.36, subdivision (c).

The first suitability criterion calls for an “opinion of a qualified mental

health expert” that “the defendant’s symptoms of the mental disorder

causing, contributing to, or motivating the criminal behavior would respond

to mental health treatment.” (§ 1001.36, subd. (c)(1).) Substantial evidence

supported the trial court’s finding that Khan failed to show the symptoms of

his major depression—the mental disorder that was a significant factor in his

arson offense (see id., subd. (b)(2))—would respond to treatment.

In his application, Khan asserted that his diagnosis of major depressive

disorder rendered him eligible for mental health diversion under section

1001.36, subdivision (b). In a report generated for Khan’s original sentencing

(before section 1001.36 was enacted), Dr. Perez described Khan’s psychiatric

history based on Khan’s self-reporting and medical records. Dr. Perez

confirmed a diagnosis of “[m]ajor depression recurrent ([m]oderate to

[s]evere),” and concluded it was “likely that a combination of acute stressors

(threatened interruption in health insurance, failure at a job interview, being

advised of probable chronic pain), chronic mental illness ([m]ajor

[d]epression) and acute intoxication ([c]annabis and alcohol) led to the

unfortunate behavior” (i.e., the arson offense).

Dr. Perez further concluded that Khan “is clearly a highly educated,

intelligent individual. [His] [i]ntellectual and cognitive abilities are well

developed. He obviously has significant potential to recover from these

incidents and lead a productive life.”

Neither Dr. Perez’s conclusions nor his other observations in the

December 2017 report offer any opinion about the responsiveness of Khan’s

symptoms of major depression to mental health treatment. Thus, the trial

15

court’s assessment of Dr. Perez’s report and opinions as deficient with respect

to the first criterion (§ 1001.36, subd. (c)(1)) is correct and supported by the

record.

Likewise, the trial court correctly found that therapist Covotta’s

December 2022 assessment and June 2023 letter did not describe how Khan’s

symptoms of depression would respond to mental health treatment.

Covotta’s assessment and letter simply do not address that topic.

The trial court also rightly concluded that social worker Le’s release

plan offered no opinion about the responsiveness of Khan’s symptoms to

treatment. Le mentioned Khan’s posttraumatic stress related to severe

hazing that he had experienced during college in Virginia and that Khan

suffered “a major depressive episode” after he moved to California. Le also

referenced counselor Delaney’s evaluation and stated that “[t]he

recommended level of care as a result of [Delaney’s] assessment is weekly

outpatient psychotherapy for social reintegration, independent living skills,

and general mental health.” (Boldface omitted.) Le described Khan as

“amenable and excited to engage in further treatment,” and opined that if

Khan were allowed to receive treatment in Virginia (upon release from

custody), his supportive network would be able to assist with his basic needs

and “pro-social engagement to help support his mental health.” Le, however,

did not discuss whether Khan’s psychiatric symptoms related to major

depression (or posttraumatic stress disorder) would respond to mental health

treatment.

Counselor Delaney evaluated Khan in February 2023 “to assess his

mental health status and determine if there is a need for [m]ental [h]ealth

[t]reatment [s]ervices.” Delaney based his evaluation on a clinical interview

16

of Khan and two self-report scales that are designed to measure depression

and anxiety—both of which returned scores for Khan that were “negligible.”

According to Delaney, Khan reported a previous diagnosis of

“[d]epression by Dr. Perez,” but Khan said he “did not take any psychotropic

medication for it,” had “no current mental health diagnosis,” and no longer

had the symptoms of “low energy and lack of motivation” that existed at the

time of his offense. Khan further reported a belief that he was sexually

abused twice as a child and that he was subjected to “some extreme hazing”

while in college between 2008 and 2012. In the diagnosis section of the

evaluation, Delaney merely noted Khan’s report of Dr. Perez’s prior diagnosis

of depression and stated that Khan “did not give more details of when he was

diagnosed.”

As mentioned ante, Delaney’s evaluation recommended that Khan (1)

participate in outpatient mental health treatment to assist with

postincarceration reintegration, increase his “self-esteem, confidence, and

efficacy,” and work through “his reported sexual and mental abuse issues to

cope with social interactions” and (2) “[t]ake[] advantage of his support

network to prevent self-isolation and enhance his ability to ask for help when

necessary for success with independent living skills.”

Like the other expert submissions that Khan provided to the trial

court, counselor Delaney’s evaluation did not offer a treatment plan for

addressing major depression or opine on whether the symptoms of the major

depression that caused, contributed to, or motivated Khan’s criminal

behavior “would respond to mental health treatment.” (§ 1001.36, subd.

(c)(1).) In fact, Delaney’s recommendations do not appear to be directed at

symptomatology related to any specifically identified mental disorder. Thus,

considering the content of Delaney’s evaluation, the record supports the

17

court’s finding that Delaney’s evaluation did not show Khan is suitable for

mental health diversion under the statute’s first suitability criterion.

For these reasons, we reject Khan’s claim that the trial court made

findings under section 1001.36, subdivision (c)(1) that were not supported by

substantial evidence.

To the extent that Khan further claims the trial court erred by focusing

on the symptoms of his major depressive disorder—rather than his current,

less pronounced symptoms of depression and posttraumatic stress disorder—

in denying his application, that claim is unpersuasive under the terms of

section 1001.36. Eligibility for diversion under section 1001.36, subdivision

(b) turns on a diagnosis of a qualifying mental disorder that “was a

significant factor in the commission of the charged offense.” (Id., subd.

(b)(2).) Correspondingly, the first criterion in subdivision (c) of section

1001.36 requires an expert opinion about “the defendant’s symptoms of the

mental disorder causing, contributing to, or motivating the criminal

behavior.” (Id., subd. (c)(1).) Thus, by its terms, section 1001.36 does not

allow a defendant to satisfy the first criterion of subdivision (c) by offering an

expert opinion about symptoms that are unconnecteda to a qualifying mental

disorder or symptoms tethered to a mental disorder that did not cause,

contribute to, or motivate the criminal behavior.

Because we conclude the trial court acted within its discretion in

denying Khan’s application for mental health diversion based on Khan’s

failure to meet the first criterion of section 1001.36, subdivision (c), we need

not address Khan’s additional contention that there is no substantial

evidence supporting the court’s finding on the fourth criterion (i.e., Khan

would pose an unreasonable risk of danger to public safety if he were treated

in the community) (id., subd. (c)(4)). Section 1001.36 states that “[a]

18

defendant is suitable for pretrial diversion if all of the following [four] criteria

are met.” (Id., subd. (c), italics added.) Given our affirmance of the trial

court’s conclusion that Khan did not meet the first criterion, that ground

alone is sufficient to uphold the trial court’s denial of Khan’s application for

mental health diversion.

For the same reason, we do not address the Attorney General’s

contention that we should uphold the trial court’s denial of diversion based on

its unchallenged, alternative ruling that, irrespective of any satisfaction of

the suitability criteria, it would not exercise its discretion to grant Khan

mental health diversion.

III. DISPOSITION

The judgment is affirmed.

19

______________________________________

Danner, Acting P. J.

WE CONCUR:

____________________________________

Lie, J.

____________________________________

Bromberg, J.

H051468

People v. Khan

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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