The opinion
Filed 4/10/26 P. v. Viera CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B344152
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24CJCF04575)
v.
SAM VIERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette Verastegui, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Chelsea Zaragoza,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
The trial court denied appellant Sam Viera’s motion for
mental health diversion. Later he pleaded no contest to one
count of assault and admitted that he used a deadly or dangerous
weapon during the offense and was sentenced to five years in
state prison. He contends the trial court abused its discretion by
denying his motion, pursuant to Penal Code section 1001.36,
based on a finding he posed an unreasonable risk of danger to
public safety if treated in the community. We affirm.
BACKGROUND
A. Current Offense
In a single count information, the Los Angeles County
District Attorney charged appellant with assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1))1 and alleged that he
inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
The information further alleged five aggravating
factors (Cal. Rules of Court, rule 4.421) and that appellant had
been previously convicted of three serious felonies (§§ 667, subd.
(d), 1170.12, subd. (b)).
The incident occurred inside and near the restroom inside a
grocery store.2 The victim was inside of a closed bathroom stall.
Appellant slid the blade of a knife through the stall door and
stated he was going to kill the victim. The victim waited for
appellant to leave before exiting the bathroom. Outside the
restroom, appellant approached the victim and struck him with a
1 Undesignated statutory references are to the Penal Code.
2 As appellant notes, the facts of the offense are not fully
adduced in the record on appeal, and we take our account of the
circumstances of the charged offenses from the trial court’s
summary of the victim’s preliminary hearing testimony.
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knife resulting in a wound to his arm and a puncture wound to
his left chest area. The wound was documented in a photograph
contained within the police report attached to appellant’s motion.
B. Motion for Mental Health Diversion
1. Moving papers
Viera filed a motion for mental health diversion pursuant
to section 1001.36. He stated he was statutorily eligible and
suitable for diversion, based primarily on the information
contained in an attached report describing his evaluation by a
clinical psychologist.
Regarding whether Viera posed an unreasonable risk of
danger to public safety if treated in the community (the only
statutory element at issue in this appeal), the psychologist
tepidly opined, “[I]f Mr. Viera is receiving treatment, he is less
likely to be symptomatic and therefore, is less likely to commit
any offenses.”
The psychologist reported that “[a]t the time of this
offense,” Viera “was do[i]ng well” and “was taking his psychiatric
medications.” Viera reported that he “was receiving mental
health treatment from his parole office at [address] and his
clinician was Ms. Mills and he received psychotherapy four times
per month for eight months, but this was supposed to be for two
years.” Viera also reported that “[h]e has never attended
substance abuse rehabilitation.”
The district attorney did not file a written opposition to
Viera’s motion for mental health diversion but orally opposed the
motion at the hearing.
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2. The Hearing
At the hearing on the petition, the People argued that
appellant was not suitable for mental health diversion. The
prosecutor detailed appellant’s criminal history, which “included
two sustained juvenile petitions for robbery and for 245(a)(1)
from 2007 where he got camp placement. When he was an adult
in 2011, he was convicted of 245(a)(1) with a gang allegation and
received 14 years in state prison. He’s on parole from that case
when this case was committed, and in the reports, it indicates
that he was receiving mental health treatment at the parole
office at the time of this crime.” The prosecutor also argued,
“[B]ased on his record and based on his conduct in this case
where he threatened victim with a knife and then stabbed him in
the chest right at his heart, piercing the subcutaneous fat in his
chest right by his nipple, with no provocation at all. [¶] . . . That
he stabbed somebody right at his heart in this particular case
shows that the risk of him committing a super strike of murder
is . . . definitely a reasonable conclusion . . . .”
The defense responded by “tak[ing] exception” with the
prosecution’s characterization that the attack was unprovoked.
The defense attorney also pointed out that the attack happened
with a butter knife, and additionally added, “I don’t believe the
people have presented actually any evidence per se to overcome
the doctor’s opinion. Submitted.”
The trial court denied the diversion motion, because it was
“not satisfied that the defendant will not pose an unreasonable
risk of danger to public safety. . . if treated in the community.”
The court stated that it based its findings on its review of the
preliminary hearing transcript, and found that “the knife attack,
which really does seem unprovoked in the sense that there’s two
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grown men outside of a restroom, trying to go in and use the
restroom – it seems completely unnecessary.” The court
concluded that Viera was the initial aggressor, the attack was
unprovoked, Viera repeatedly threatened to kill the victim, and
stabbed him near a vital organ, specifically, the chest and heart
area. The court noted, in determining the risk of danger, it had
considered the information in the defense motion, the arguments
by the district attorney, the qualified medical expert opinion as to
whether the defendant is a risk for future assaults, the
defendant’s history of violence and criminal history, [and] the
facts of the current charged offense.” The court observed that
Viera had recently been released from state prison for an assault
“very similar to this one.” The court also noted that the
documents provided by the defense (presumably referencing the
doctor’s report) established that at the time of the offense, Viera
was on parole and was receiving mental health medication and
treatment, “so the fact before the court is that even under [the]
controlled circumstance of having medication and being under
the supervision of parole officers, he was still, nonetheless,
capable and attacked another individual with a knife.” Defense
counsel did not at any time attempt to correct the court’s
understanding or offer a different interpretation of the content in
the psychologist’s report describing Viera’s mental health
treatment while on parole.
Viera obtained a certificate of probable cause and timely
appealed.
DISCUSSION
Viera contends the trial court abused its discretion in
denying his motion for mental health diversion based on the
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finding he would pose an unreasonable risk of danger to public
safety if treated in the community. Because we conclude the
court’s finding is supported by substantial evidence, we reject
Viera’s contention.
A. Legal Principles Regarding Diversion and Standard
of Review
Diversion under section 1001.36 “allows for the suspension
of criminal proceedings and potential dismissal of charges upon
successful completion of mental health treatment.” (Sarmiento v.
Superior Court of San Diego County (2024) 98 Cal.App.5th 882,
890 (Sarmiento).) One of the purposes of the legislation is
“[i]ncreased diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety.” (§ 1001.35, subd.
(a).)
“[M]ental health diversion requires trial court findings that
the defendant is both eligible for diversion and suitable for the
program. The criteria for each are specified in the statute.
(§ 1001.36, subds. (b) & (c).) Defendants are eligible if they have
been diagnosed with a recognized mental disorder that was a
significant factor in the commission of the criminal offense with
which they are charged. (Id., subd. (b).) They are suitable if: (1)
in the opinion of a qualified mental health expert, the defendant’s
mental disorder would respond to treatment; (2) the defendant
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
defined in sections 1170.18 and 667, subdivision (e)(2)(C)(iv).
(§ 1001.36, subd. (c).)” (Sarmiento, supra, 98 Cal.App.5th at p.
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891.) “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. Moine (2021) 62 Cal.App.5th 440, 449 (Moine).)
This appeal concerns only the fourth suitability criterion
listed above—no unreasonable risk of danger to public safety.
Unreasonable risk of danger to public safety means “a likelihood
that if the defendant is granted diversion, [he or] she will commit
one of the ‘super strike’ violent felonies enumerated in section
667, subdivision (e)(2)(C)(iv).” (Sarmiento, supra, 98 Cal.App.5th
at p. 895; Moine, supra, 62 Cal.App.5th at pp. 449-450.) “Those
super strikes are murder, attempted murder, solicitation to
commit murder, assault with a machine gun on a police officer,
possession of a weapon of mass destruction, any serious or violent
felony punishable by death or life imprisonment, or any sexually
violent offenses or sexual offense committed against minors
under the age of 14.” (People v. Whitmill (2022) 86 Cal.App.5th
1138, 1150-1151 (Whitmill).)
In deciding whether a defendant poses an unreasonable
risk of danger to public safety, 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).) A trial court may
“rely[] primarily, or even entirely, on the circumstances of the
charged offense or offenses” in finding a defendant unsuitable for
diversion. (People v. Bunas (2022) 79 Cal.App.5th 840, 862.) We
review a trial court’s finding that a defendant poses an
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unreasonable risk of danger to public safety for substantial
evidence. (Sarmiento, supra, 98 Cal.App.5th at p. 897; Whitmill,
supra, 86 Cal.App.5th at p. 1150.)
B. Substantial Evidence Supports the Trial Court’s
Finding That Viera Posed an Unreasonable Risk of
Danger to Public Safety If Granted Diversion
Viera argues there was no evidence presented to rebut the
psychologist’s conclusion that while receiving treatment in the
community he would not pose a danger of committing a super
strike. But that was not the psychologist’s conclusion. The
psychologist concluded that “[I]f Mr. Viera is receiving treatment,
he is less likely to be symptomatic and therefore, is less likely to
commit any offenses.” Viera concedes that the court correctly
recited Viera’s criminal history, but states the court failed to
recognize the connection between Viera’s criminal history and
mental health issues. Viera states that the psychologist
recognized that Viera had never received substance abuse
treatment and his parole-ordered treatment had lapsed and
claims “no evidence was presented to question or contradict the
doctor’s opinion.” Viera states that the court’s finding was
“contrary to the evidence provided by [the psychologist], who
stated that appellant had never received treatment and that his
parole ordered treatment had lapsed.”
The psychologist’s report contains substantial evidence of
the court’s findings. While the report does say in one section that
the defendant reports he never received treatment, in another
section titled “Relevant history” which notes “The following
information in this section was obtained by the defendant,” the
report states the defendant “was receiving mental health
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treatment from his parole office at [address] and his clinician was
Ms. Mills and he received psychotherapy four times per month for
eight months, but this was supposed to be for two years.” On
appeal, Viera appears to be arguing this sentence in the report
means that Viera was no longer receiving mental health services
through parole, inferring that psychotherapy was the only mental
health service Viera was being provided, which was supposed to
last for two years and had lapsed at the time of the crime.
However, a more reasonable interpretation of that sentence is
that Viera was receiving various mental health services through
parole, and only the psychotherapy component had lapsed, with
any other mental health services remaining ongoing. This is
supported by the reference in the psychologist’s report to Viera
being on his psychiatric medications at the time of the offense, as
the prescribing of psychiatric medications is clearly part of a
course of mental health treatment. This appears to be the way
the trial court interpreted the sentence in the report, it is the
most reasonable interpretation of that sentence, and the defense
did not dispute or attempt to rebut the trial court’s interpretation
at the hearing.
The foregoing facts constitute substantial evidence
supporting the trial court’s finding there was a likelihood Viera
would commit a super strike offense if granted diversion.
Substantial evidence shows Viera was obtaining mental health
treatment in the community at the time he stabbed a man near
the heart during an unnecessary conflict over a bathroom stall.
Viera’s violent criminal history, and the fact that Viera was in
fact being treated in the community at the time he stabbed the
victim near the heart support the trial court’s finding that he
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posed an unreasonable risk of danger to public safety if granted
diversion.
Viera has not demonstrated error. Accordingly, we affirm
the judgment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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