P. v. Adamyan CA2/8 filed 6/30/26

Filed 6/30/26 P. v. Adamyan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff andRespondent,

v.

GAGIK ADAMYAN,

Defendant and Appellant.

B341291

(Los Angeles County
Super. Ct. No.24GDCF00086-01)

APPEAL from a judgment of the Superior Court of Los Angeles County,Dorothy L. Shubin, Judge. Reversedwith instructions.
Nicole Kronberg, 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,Stephanie C. Brenan and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Appellant Gagik Adamyan asked for mental health diversion after being charged with shooting at an inhabited dwelling in violation of Penal Codesection 246. There are two issuesbefore us. First, whether substantial evidence supports the trial court’s finding that Adamyan poses an unreasonable risk to public safety and is therefore not a candidate for mental health diversion under section 1001.36; and second, whether the trial court abused its discretion in finding Adamyan unsuitable for diversion. We conclude the finding of unreasonable risk to public safety is not supported by substantial evidence and the trial court abused its discretion in finding Adamyan unsuitablefor diversion. We reverse with instructions to the trial court to vacate Adamyan’s plea and place him on mental health diversion.
BACKGROUND
The Offense
These facts are taken from the transcript of the preliminary hearing. At about 1:46 a.m. on March 11, 2024, police responded to a “shots fired” call in Glendale, California. Adamyan had fired a gun 10 times at a plywood-covered gate, leaving 10 bullet holes. Behind the gate were a parking lot andan opening to street level garage parking for an occupied apartment building. No cars were hit and no people were at the site at the time of the early morning shooting. No other bullet holes other than the ones on the plywood gate were found. There were no bullet holes next to any apartment windows, although anofficer “noticed holes in the plywood that went further on into the cement behind.” Adamyanstood in the middle of the street, approximately 20 feet from the gate, as he fired. With both hands, he aimed directly in front of him at the gate, not into the air or at the ground. After the shooting, Adamyan unloaded the magazine of the gun, set the gun on the ground, and walked away.
There was one eyewitness, a resident of the apartment building who lived in a second floor unit. He heard shots and looked out his window. From his second floor window, the resident saw Adamyan, whom he knew, shooting directly into the gate.The gate had a piece of paper plate attached to it, taped to it was a Styrofoam cup. The witness was two floors up and 20 feet from the gate.He saw Adamyan unload and reload the firearm.
When police arrived on the scene, Adamyan had his hands up and cooperated with law enforcement. He told the responding officer, “I was the one who shot at the fence across the street, and I have a live ammoin my hand.” He obeyed the police officer’s direction to drop the ammunition. Adamyan told police he no longer had the gun because he had discarded it at the site, and then heshowed them where the gun was.
Adamyan told police he was in his apartment across the street when he saw someone slashing his tires. He went outside, but the person was gone. He shot his gun into the air and at the “basement” because he wanted help and thought the police would come to help him. When asked why he did not use his phone to call for help, he said his phone was off.
Mental Health Evaluation
From his arrest in March 2024, Adamyan remained in custody at the Los Angeles County Jail. On September 26, 2024, he requested mental health diversion pursuant to section 1001.36.Attached to Adamyan’s written request for mental health diversion were reports from Dr. Emin Gharibian, a psychologist, and notes from the jail psychiatrists.
Dr. Gharibian’s evaluation occurred after Adamyan had been in custody and treated by jail psychiatrists for five months. Dr. Gharibian reported he used the Clinician-Administered PTSD Scale for DSM 5 (CAP-5) and Historical Clinical Risk Management 20-Version 3 (HCR 20 VC) in making his assessments. He also reviewed Glendale Police Department Reports dated March 12, 2024; an April 12, 2024 probation report; the preliminary hearing transcript from April 30, 2024; the criminal complaint; and Adamyan’sjail records.
Symptoms While in Custody
Dr. Gharibian summarized Adamyan’sjail records, which contained information from a prior hospitalization in October 2023 when “firefighters brought him in after he was stabbed twice in the chest and once in the left hip.” The jail admission paperwork from the night of his arrest disclosed Adamyan reported a history of depression and using marijuana. The paperworknoted that he was “ ‘odd’ ” and “ ‘hostile.’ ” He waseasily agitated, became hostile and/or angry, and started yelling out of nowhere. Upon admission to the county jail on March 15, 2024, Adamyan denied using illicit drugs. Initially he seemed confused, rambling and talking over questions. There were concerns that this was possibly due to a language barrier. He reported that he was being treated for depression. He was also described as “ ‘jolly, chuckling some, interactive, and not upset other than not happy about his arrest.’ ”On April 12, 2024, deputies found Adamyan screaming and using vulgar language. He shouted at another inmate with his fist clenched and yelled racial slurs. He told deputies he was an Army officer, and he outranked them.
The next day, Adamyan was seen by jail mental health staff, and he “calmed down and was more cooperative.” He stated the other inmate called him racist and wanted to fight him. He reported feeling more depressed lately.He told the psychiatrist he experienced auditory hallucinations of people talking. The psychiatrist noted Adamyan was rambling, hyperverbal, and mostly incoherent. His thoughts were described as disorganized and illogical without further elaboration. (It was unclear if the evaluation was completed in Armenian or English.) He was prescribed Abilify 10 mg. and given various diagnoses, including Unspecified Schizophrenia Spectrum and Other Psychotic Disorder, withrule-outs of substance-induced psychosis, schizophrenia, schizoaffective disorder and mood disorder. The psychiatrist noted Adamyan was not a reliable historian and had had minimal contact with mental health services until that point.
One month later, Adamyan was seen again by jail mental health staff for a follow-up appointment. An Armenian interpreter was used in this evaluation. Adamyan had been taking his medications as directed. He reported depression as well as auditory and visual hallucinations and anxiety. He denied any paranoia, delusions, or command auditory hallucinations. There were no overt signs of psychosis. Adamyan reported hearing a buzzing noise in his ears and sleeping poorly because he was constantly thinking about things. He experienced nightmares related to his seven-year service in the Armenian Army. He reported he did breathing exercises, read books, and walked around to help with his anxiety and depression.
On May 30, 2024, Adamyan was reevaluated, again with an Armenian interpreter. He reported experiencing auditory hallucinations, voices of people which came and went. He had withdrawn from family, although he reported he was usually very upbeat and social. He was prescribed Zoloft 50 mg. with Abilify 15 mg.
Adamyan was again seen by jail psychiatrists on August 22, 2024. (He had been in custody by now for five months.) He reported occasional depression and anxiety. His moods went up and down. He denied feeling paranoid in jail but reported feeling paranoid in the community. He related hearing voices of people talking from his time in the Armenian wartime army. He was prescribed Zoloft 75 mg., Abilify 15 mg., and Benadryl 25 mg. His various diagnoses included Unspecified Mood Disorder, Unspecified Anxiety Disorder, and Unspecified Psychotic Disorder.
While in custody, Adamyan took the prescribed medication. His mental health vastly improved as his medications were increased.By August 22, “he did not appear to be in distress, and there were no signs of psychosis.”
Adamyan’s Personal History
Adamyan said he was born in Armenia and moved to Boston in 2003. His marriage ended in 2009 or 2010, and his daughter lives with his ex-wife. He moved to Los Angeles in 2018 to help his sister who was ill and having surgery. He has lived by himself for the past 13 or 14 years in a Section 8 apartment.
Adamyan was a gymnastics coach and teacher, worked in a jewelry business and a limo company, and transported medical supplies. He stopped working in 2018 or 2019 when he began struggling with depression. He had no history of being on Supplemental Security Income or disability. He reported being stabbed five times in the chest around October 2023 and had to undergo surgery.
Although Adamyan was using marijuana daily prior to being arrested because it made him feel “balanced,” he had no history of substance abuse treatment. He started to use methamphetamine after his divorce because it helped him feel relaxed. He used it two to three times a week for two to three years prior to being arrested. He also started to abuse alcohol after his divorce.Just before his arrest, he did not abuse alcohol. He would drink twice a week and might have two to three beers. He last used cocaine two years before his arrest and, when he did use, it was with others when he was drinking.
Adamyan reported that his primary care doctor diagnosed him with depression. He was not taking medication, but would do breathing exercises, drink water, work out, and lift weights. He felt depressed due to pain from his heart surgery as well. He smoked marijuana daily because it helped him feel good. He was calm and linear, but he was talkative. During the evaluation, he denied any symptoms related to depression, PTSD, mania, or psychosis at that time. He only reported a history of depression. There were no signs of psychosis or mania.
Adamyan has had no mental health treatment in the community. Along with his depression beginning in 2018/2019, he felt hopeless and unable to focus; he struggled to sleep and had headaches. He has a service dog to help with anxiety.
Dr. Gharibian’s Evaluation
By August 27, 2024, when examined by Dr. Gharibian, Adamyan’s thinking was “linear, logical, and easy to follow.” Adamyan experienced auditory hallucinations of voices of deceased people. He did not display any overt signs of psychosis and overall “presented with good insight into his issues with depression and substance abuse” and “has been cooperative with treatment” while in county jail.
As ofAugust 27, 2024, Adamyan was calm and cooperative. His hygiene and grooming were good; he was aware of who he was, where he was, and the purpose of the evaluation. There was no evidence of confused, illogical or delusional thinking. He spoke clearly with an average pace and volume with no overt memory or attention impairments. He presented with good insight into his issues with depression and substance abuse.
Dr. Gharibian concluded Adamyan’s “reasoning and decision-making regarding his actions were illogical and not grounded in reality. He does not have any criminalhistory or violence. He believed that discharging his firearm would get the police to come and help him. It is unclear if his tires were slashed or if there was anyone else in a vehicle on the street. He denied using methamphetamine on theday of his arrest; however, he reported that he was smoking marijuana. [¶] . . . Individuals with psychosis, even outside of substance abuse, present with paranoid and delusional thinking and often misinterpret the information around them (e.g., they might believe that someone is talking about them or is a threat to them). When they are not medication compliant, they can engage in irrational and unpredictable behaviors that place themselves and others at risk for harm.”
Dr. Gharibian opined that 1) Adamyan has a qualifying mental disorder, as he met the diagnostic criteria for major depressive disorder, recurrent episode, with psychotic features; cannabis use disorder, severe, in a controlled environment; stimulant use disorder, amphetamine type substance, severe, in a controlled environment; 2) his mental disorder played a significant role in the alleged offense; 3) the symptoms of the mental disorder that caused, contributed to, or motivated the criminal behavior are likely to respond to treatment; 4) heis willing tocomply with treatment as a condition of diversion; 5)there is not an unreasonable risk of danger to public safety as defined in section 1170.18 if Adamyan is treated in the community.
Dr. Gharibian considered whether Adamyan’s symptoms were drug-related. “[H]is jail records indicate that he was presenting with psychotic symptoms a month after he was incarcerated. His symptoms started to resolve once he was prescribed medications. He denied using any drugs while incarcerated, and his records did not indicate information to suggest that he was under the influence while in county jail. Although his substance use can exacerbate his symptoms, his records suggest he has presented with signs of psychosis outside of substance abuse as well. While he has been given various diagnoses while incarcerated, the combination of major depressive episodes along with psychotic symptoms would be consistent with Major Depressive Disorder, Recurrent Episode, with Psychotic Features.” (Boldface omitted.)
Dr. Gharibian explained, “Major Depressive Disorder with Psychotic Features is a type of major depression where, in addition to experiencing the typical symptoms of depression, a person also has symptoms of psychosis. These psychotic symptoms can include delusions (false beliefs that are not based on reality), hallucinations (seeing or hearing things that are not actually there), paranoia, disorganized thoughts, or agitation/aggression. Individuals with this condition not only feel persistently sad, hopeless, or disinterested in daily activities but also might experience severe disruptions in their perception of reality.”
Dr. Gharibian also diagnosed Adamyan with Cannabis Use Disorder, Severe, In a controlled environment, and Stimulant Use Disorder, Amphetamine Type Substance, Severe, In a controlled environment. “The only reason he is sober is because he is incarcerated and in a controlled environment.” He recommended that Adamyan be placed in an evidence-based residential drug and mental health treatment program due to the severity of his substance use, depression, and co-occurring psychosis. The duration of his treatment would have to be determined by his treatment team, which would also create a transition plan to step him down to an intensive outpatient program or a general outpatient drug and mental health treatment program in the community. He noted that Adamyan reported a desire to attend treatment, which was borne out by his willingness to take psychotropic medication while in jail.
Finally, Dr. Gharibian found Adamyan would not present an unreasonable risk of danger to public safety if treated in the community. He currently displayed minimal risk factors, which Dr. Gharibian attributed to Adamyan’s sobriety while incarcerated, good insight into his issues, cooperation with treatment, and lack of prior criminal history. Dr. Gharibian opined that if Adamyan were provided with resources and treatment, remained cooperative, and stayed sober, he would not pose an unreasonable risk to public safety. Dr. Gharibian wrote: “His only historical risk factors for violence include a history of untreated depressionand substance abuse....He would use drugs in order to self-medicate due to feeling depressed. Althoughhe discharged a firearm in his case, it was not directed towards anyone, and there was nobody that was harmed. His decision-making and judgment were ultimately impaired due to his underlying mental illness (depression with psychotic features) as well as being under the influence of marijuana. [¶]He has minimal current/clinical risk factors for violence; however, this is because he is incarcerated and sober. He has good insight into his issues with depression and substance abuse. He was offered mental health treatment in county jail and has been cooperative with treatment. Although he has never attended treatment in the community, he reported that he would agree to attend a residential mental health and substance abuse treatment program. [¶] Given his history of depression, ongoing substance abuse in the community, and lack of evidence-based drug or mental health treatment in the community to minimize his risk of violence, if he is treated in the community, the only viable option would be a residential drug and mental health treatment facility for at least 60 to 90 days. His treatment team would have to determine the exact duration and details of treatment.” Dr. Gharibian specifically noted that the residential mental health treatment he was recommending did not involve a locked facility.
Request for Mental Health Diversion
Adamyan presented Dr. Gharibian’s evaluation to the trial court as an exhibit to his motion for mental health diversion. In addition to Dr. Gharibian’s diagnosis, Adamyan presented two additional factors in support of mental health diversion: he had no criminal history and he was in his early 50’s, well past the age when people are likely to reoffend. He also noted that the offense behavior occurred while he was experiencing depression and psychosis, and self-medicating with alcohol and marijuana. Since his arrest, he had stabilized in custody and was willingly accepting treatment and medication.
Adamyan advised the court he had been accepted into a one-year dual diagnosis residential treatment program, JCOD- STOP, through the Amity Foundation. This program included “individual therapy, group therapy, rehabilitation sessions, and case management each week, in addition to monthly meetings with a psychiatrist to monitor Mr. Adamyan’s psychotropic medications.” JCOD-STOP is a residential treatment program for up to one year, and it provides regular reports to the court, defense counsel and the prosecutor on the patient’s progress. It is a more intensive program than the 60 to90 day dual diagnosis option recommended by Dr. Gharibian.
The People filed a lengthy written opposition arguing Adamyan presented an unreasonable risk of danger to the public. The People acknowledged Adamyan had no criminal history and no history of mental health treatment prior to his arrest, despite his depression diagnosis. The People agreed the one-year JCOD-STOP program was appropriate, but they advised the court that they would only agree to it after Adamyan pled to the charge and was placed on probation. They advised the court: “The People would agree to this program after a plea and probation. Supervision by the probation department would provide an added public safety guard that the People would agree to.” They distinguished cases presenting very similar facts and argued that “defendant’s conduct was extremely dangerous to human life and could have resulted in either great bodily injury or death but for the hour of the morning and the fact that no one was walking by or in the parking structure at the time that he fired 10 rounds at the parking garage structure. This could have resulted in a super strike and thus, these facts necessitate a finding that the defendant constitutes a danger to public safety and that there is a likelihood of the defendant committing a superstrike.”
Acknowledging that “[c]ourts have . . . criticized such a sentiment,”the People urged the court, as an alternative to mental health diversion, to impose a probationary sentence which “would act as an incentive for the defendant to refrain from committing further violence.” The People concluded by stating the “proposed mental health treatment plan for the defendant does not take into account the following factors that would prevent the defendant from becoming an unreasonable risk to public safety by treatment in a community based mental health treatment program: the proposed program is an unlocked program from which the defendant can easily discharge himself.” In summary, the People did not dispute that Adamyan needed mental health treatment or that his mental illness contributed significantly to his involvement in the offense. Their only opposition to diversion was that diversion would mean he was not under the supervision of the probation department which,they believed, would be a necessary added protection for the safety of the public and an added incentive to Adamyan to remain law abiding.
Trial Court’s Ruling
On September 26, 2024, the trial court heard Adamyan’s motion for mental health diversion. Defense counsel advised the court that the People were “willing to allow Mr. Adamyan to plead to the charge for [a]probationary sentence. [¶]And what that says is that he would be placed on probation and be doing that lengthy residential dual diagnosis treatment program regardless of whether he was placed on mental health diversion because that is the—essentially what the People’s offer is if the mental health diversion is not granted.” Adamyan’s counsel continued: “To me what that means is that the People agree that mental health treatment would be indicated in this case and would be helpful to Mr. Adamyan who has been in custody since the date of the incident which is several months ago. The only difference would be that Mr. Adamyan, [a] 51-year-old man who has no criminal record, would have a serious felony conviction on his record if he pled and were placed on probation. [¶] The length of diversion is the same as the length of probation. There are regular check-in reports that he would be required to show progress on during the period of diversion, and I think it’s arguable that the mental health diversion would actually provide more oversight for Mr. Adamyan than if he were just assigned a probation officer and told to come in once a month.”
The People argued they opposed “mental health diversion given the public safety concern. Mr. Adamyan shot at the parking structure ten times. It’s an apartment building. But for, perhaps, the hour, the early morning hours is one—probably the reason nobody was hurt. He was aiming it directly at the apartment building. It struck the parking structure ten times.” (We note this recitation of the facts does not completely comport with the evidence presented at the preliminary hearing.)
In reply, defense counsel emphasized Adamyan had no prior criminal record, stabilized in custody, and “is precisely the type of person that the mental health diversion statute was designed for, someone who committed an act because of a mental illness and who can respond to treatment and wants to get treatment and also significantly who has not—who has not been placed on something like diversion or given mental health treatment before and failed. He hasn’t ever been given this opportunity before.”
The trial court denied the motion for mental health diversion “on the grounds of danger to the community. [¶] I’ve granted mental health diversion on a number of cases. Weapons were used, a knife or other weapons. The problem here [is] we’re talking about a handgun. It was reported that Mr. Adamyan was firing the handgun with two hands, multiple rounds. Th[ere] were ten bullet holes in the plywood, and it was fired toward an apartment building with significantly—it was 10 feet away from a witness’s apartment. Very fortunate for Mr. Adamyan and everyone else that no one was hit by this or injured. [¶] The court finds—there’s more [than]a reasonable possibility that Mr. Adamyan could commit a super-strike, and I think the conduct is so highly dangerous—again, fortunate that there weren’t worse consequences than these. The court rules this is not a suitable case for mental health diversion.”
Adamyan then entered a plea of no contest to the charge of shooting at an inhabited dwelling and was sentenced to two years of formal probation with the condition that he enter a residential treatment program until authorized for release by the program director, probation officer, or the court. Adamyan timely appealed.
DISCUSSION
On appeal, Adamyan disputes whether he poses an unreasonable risk of danger to public safety if treated in the community on diversion and contends the trial court abused its discretion in finding him unsuitable for diversion.
Applicable Law
Section 1001.36 authorizes courts to grant pretrial mental health diversion to defendants who meet six qualifying requirements. (§ 1001.36, subds. (a), (b)(1); People v. Williams (2021) 63 Cal.App.5th 990, 995 (Williams).) “The stated purpose of the diversion statute ‘is to promote all of the following: [¶] (a)Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.[¶](c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.’ ” (People v. Frahs (2020) 9 Cal.5th 618, 626 (Frahs); § 1001.35, subd. (a).) If “the defendant successfully completes diversion, including having in place aplan for long-term mental health care, the criminal charges shall be dismissed. (§ 1001.36, subd. (e).) However, if after diversion is granted, a qualified mental health expert concludes the defendant ‘is performing unsatisfactorily in the assigned program,’ the court shall, after notice to the defendant, hold a hearing to determine whether criminal proceedings should be reinstated or treatment modified. (Id., subd. (d)(4)(A).)” (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149–1150 (Whitmill).)
The statute has been amended over the years. Recent amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion, bearing out judicial pronouncements that the Legislature intended the mental health diversion program to apply as broadly as possible. (Frahs, supra, 9 Cal.5that p.632; Whitmill, supra, 86Cal.App.5that p.1149.)
Effective January 1, 2023, mental health diversion requires the trial court to find that the defendant is both eligible for diversion and suitable for the program.
A defendant is eligible if they meet two criteria: first, the defendant must have been “diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,”within the last five years, by a qualified mental health expert. (§1001.36, subd. (b).)
Second, the disorder must be a significant factor in the commission of the charged offense. The court “shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” (§ 1001.36, subd. (b)(2).) This presumption cannot be overcome by the mere absence of evidence demonstrating the defendant’s mental illness was a factor in the alleged offenses. If a mere absence of evidence were sufficient, the court would effectively be impermissibly shifting “the burden to [defendant] to affirmatively prove that his mental disorder contributed to the offenses.” (Lacour v. Superior Court(2025) 110Cal.App.5th 391, 404; see Gomez v. Superior Court (2025) 113Cal.App.5th 671, 688–689.)
If the defendant satisfies the statutory eligibility requirements, the court must then consider whether the defendant is suitable for pretrial diversion. The four criteria to assess suitability are grouped in section 1001.36, subdivision (c). As with the “diagnosis” eligibility requirement, the first of these relies on input from a medical professional, in this instance “the opinion of a qualified mental health expert,” that the symptoms of defendant’s mental disorder “would respond to mental health treatment.” (§ 1001.36, subd. (c)(1);Sarmiento v.Superior Court (2024) 98 Cal.App.5th 882, 893–894 (Sarmiento).) The second and third requirements are satisfied if the defendant agrees to waive their speedy trial rights and to comply with treatment as a condition of diversion. (§1001.36, subd. (c)(2), (3).)
Only the fourth requirement necessitates a trial court finding, to wit, that the defendant “will not pose an unreasonable risk of danger to public safety . . . if treated in the community.” (§ 1001.36, subd. (c)(4); Sarmiento, supra, 98 Cal.App.5th at p.892.) Even here, however, the Legislature has narrowly defined the applicable criteria. Borrowing from sections 1170.18, subdivision (c) and 667, subdivision (e)(2)(C)(iv), an “unreasonable risk” to public safety “means a likelihood that the defendant will commit one of the violent felonies specifically enumerated in the statute.”(Sarmiento, at p. 892.)As listed in section 667, subdivision (e)(2)(C)(iv), these felonies are:
Sexually violent offenses and several sexual offenses with minors under the age of 14 or more than 10 years younger than the defendant
Murder, attempted murder
Gross vehicular manslaughterand vehicular manslaughter while intoxicated
Solicitation to commit murder
Assault with a machine gun on a police officer or firefighter
Possession of aweapon of mass destruction
Any serious or violent felony punishable by life imprisonment or death
These felonies are colloquially known as “super strikes.” (Williams, supra, 63 Cal.App.5that p.1001.)
In determining whether a defendant poses an unreasonable risk to public safety, the court may considerthe opinions of the district attorney, the defense, or a qualified mental health expert. It may also consider the defendant’s treatment plan, violence and criminal history, current charged offense, and any other factors the court deems appropriate. (§1001.36, subd. (c)(4).)
Assuming 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.” (§ 1001.36, subd. (f)(1)(A)(i); People v. Gerson (2022) 80 Cal.App.5th 1067, 1079 (Gerson).) 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 defendant will receive appropriate treatment for their particular conditions as part of the diversion program. (Sarmiento, supra, 98 Cal.App.5th at p. 892.)
Finally, even if adefendant has made a prima facie showing that all the express statutory eligibility and suitability requirements are met, the court may still exercise its discretion to deny diversion. But this “residual” discretionis not unfettered; it must be exercised “ ‘consistent with the principles and purpose of the governing law.’ ”(People v. Qualkinbush (2022) 79Cal.App.5th 879, 891 (Qualkinbush).) Where the court chooses to exercise that residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversionwould not meet these goals. (Sarmiento,supra, 98 Cal.App.5th at pp. 892–893; Qualkinbush, at pp. 891–892.)
The goals include a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community;a preference to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety; a desireto give counties discretion in developing and implementing diversion across a continuum of care settings; and the provision of mental health rehabilitative services. (Sarmiento, supra, 98 Cal.App.5th at pp. 892–893;Qualkinbush, supra, 79 Cal.App.5th at p. 886.) The trial court must treat the matter as if the charges against the defendant have not yet been adjudicated; the court is not sentencing the defendant. (Qualkinbush, at p. 892, fn. 11.)
Standard of Review
We review the trial court’s factual findings as to the enumerated statutory criteria for substantial evidence. (Gerson, supra,80 Cal.App.5that p.1079.) Under this deferential standard of review, “ ‘we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Ibid.) “ ‘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.’ ” (Ibid).
We review the trial court’s ultimate decision whether to grantmental health diversion for an abuse of discretion. (Gerson, supra,80 Cal.App.5that p. 1080.) By its terms, section 1001.36 is designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior. As with any principled exercise of discretion, the court must utilize the appropriate criteria consistent with the principles and purposes of the governing law, only drawing conclusions supported by substantial evidence. (Sarmiento, supra,98 Cal.App.5th at p. 887.)
Analysis
Here, the trial court found Adamyan unsuitable because “there’s more [than] a reasonable possibility that Mr. Adamyan could commit a super-strike,and I think the conduct is so highly dangerous—again, fortunate that there weren’t worse consequences than these.” We find no substantial evidence in this record to support the trial court’s unsuitability finding.In other words, there is no substantial evidence that Adamyan will commit a super strike if on diversion in the community. Alternatively, if the trial court intended to exercise its residual discretion, it abused its discretion in doing so.
No doubt it is dangerous whenever anyone is shooting a firearm in the middle of the night near residential buildings. But the diversion statute does not concern danger in the conventional sense of the word. It focuses exclusively on super strikes as the measure of dangerousness. Super strikes are a narrowly drawn subset of violent felonies involving extreme violence. (People v. Moine (2011) 62 Cal.App.5th 440, 450.) The superstrikes chosen by the Legislature involve weapons of mass destruction, sexually violent offenses or sexual offenses with minors, assault with machine guns on law enforcement and firefighters, murderoffenses requiring proof of intent to kill and malice, manslaughter involving driving while intoxicated, and violent offenses calling for the death penalty or life imprisonment without parole. In short, the Legislature limited the notion of unreasonable dangerousness to a very specific and extreme type of danger to public safety.
Putting aside the super strikes that are clearly not implicated by these facts, there was no substantial evidence that Adamyan would commit murder if he were placed on mental health diversion in the community. While the trial court focused on the possibility of serious injury that could have resulted from Adamyan’s shooting 10 times at the plywood gate, that is not evidence, much less substantial evidence, that Adamyan would likely commit murder if he were placed on mental health diversion in the community, and none of the other facts of the offense or the offender suggest such a likelihood.
Adamyan committed his offense at 1:46 a.m.,a time when no individuals or groups of individualswere presentor likely to be present on the street.He shot at a wooden gate backed up by a concrete building, notat windows, doors, or passing cars where people could have been vulnerable to a bullet spray. Moreover, he immediately removed the magazine from the weapon and discarded it before the first responding police officers arrived. He then cooperated with them without in any way attempting to endanger their safety or engage them violently,volunteering the location of the weapon and turning over the ammunition in his hand. This offense and the way it was committed do not indicate that Adamyan would engage, if released, in the particular kind of extreme danger to public safety represented by the enumerated super strikes, particularly murder or attempted murder.
Our conclusion is further buttressed by other evidence in the record, including Adamyan’s lack of any criminal history at age 51. In this regard, we note that the lack of a criminal record is strong evidence that a defendant is unlikely to commit a future super strike offense. (People v. Hoffman (2015) 241 Cal.App.4th1304, 1310.)
Significant to us as well is Adamyan’swillingness to accept treatment while in custody and thesubstantial improvement of his symptoms while on voluntary medication in custody.This last fact—substantial improvement in symptoms due to pretrial mental health treatment—is a factor that most courts unfortunately do not have the opportunity to consider. But it certainly bodes well for suitability for and success on diversion. The trial court did not appear to consider Adamyan’s dramatic improvement while on voluntary medication. Adamyan’s complete cooperation with six months of prescribed treatment, combined with the facts of this offense, belie any finding that he was likely to commit a super strike while on diversion. (Whitmill, supra, 86 Cal.App.5that p.1151 [prior record of drug and theft offenses without superstrike convictions,combined with surrender to law enforcement,is a “far cry” from indicating afuture likelihood to commit superstrike offenses].)
The lack of substantial evidence of future dangerousness at the level of committing a superstrike is also borne out by the court’s ultimate resolution of the criminal charges with the People’s consent. The People agreed to a disposition that called for two years of supervised probation with a condition of residential mental health treatment in the community.They agreed the program defense counsel had arranged was appropriate, with no condition that Adamyan be treatedin a locked facility. Likewise, the trial court voiced no problem with the proposed program. It is difficult to fathom that had the People formed the impression that Adamyan posed an unreasonable danger to public safety, they would have agreed to such a disposition. It is even harder to fathom that the trial court would have agreed to this disposition as well.
Finally, if the trial court was exercising its residual discretion to deny mental health diversion, we conclude it abused its discretion in choosing probation as a“motivator” and “incentive” to remain law-abiding over the benefits of mental health diversion with treatment focused on a defendant’s particular diagnoses. Choosing two years of probation as a motivating factor over diversion here does nothing more than add a felony criminal conviction to Adamyan’s criminal history. This is so because if he failed at diversion, he would meet the same fate as if he violated probation—the prospect of state prison following a conviction of the offense. The trial court’s conclusion and the People’s contention that diversion is insufficiently motivating is simply a challenge to the underlying premise of diversion itself. (Whitmill, supra, 86 Cal.App.5th at p. 1155 [nothing in the diversion statute suggests the Legislature intended to give courts discretion to deny diversion simply because diversion may be less motivating than probation or prison].)
Neither did the court consider that it has the authority and obligation to continually assess whether the treatment given to Adamyan while on diversion is appropriate. (Sarmiento,supra, 98 Cal.App.5th at p. 892; § 1001.36, subd. (c)(4).) Exercising its assessment obligation would keep the trial court on top of Adamyan’s compliance with treatment and prognosis. A grant of probation was not required to execute this duty, making probation supervision a superfluous safeguard.
Finally, in exercising residual discretion, the trial court must consider whether denial of diversion comports with the Legislature’s purpose in enacting the statute in the first place. Here it is beyond cavil that the Legislature intended to “divert” individuals out of the criminal justice system to stop the revolving door of convictions and incarcerations that untreated mental illness promotes. That Adamyan was placed in the same program but had to sustain a conviction and probationary sentence in order to get the treatment he needed is a telling indication that the trial court did not consider the Legislature’s intent. It chose conviction over diversion and then gave Adamyan the exact treatment he would have received under diversion. Under these facts and this statute, the days of conviction over diversionare no more.
DISPOSITION
The judgment is reversed with directions to vacate Adamyan’s plea and grant Adamyan’s motion for pretrial mental health diversion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

VIRAMONTES, J.

SCHERB, J.