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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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