People v. Lytle CA1/4

Filed 11/10/26 P. v. Lytle CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, A174761 Plaintiffs and Respondents, v. DANIEL FRANK LYTLE, JR., (Humbolt County Super. Ct. Defendant and Appellant. No. CR2500652) Daniel Frank Lytle, Jr., appeals the denial of his motion for mental health diversion (Pen. Code, § 1001.36).1 He contends the trial court abused its discretion in two ways. First, it made a finding unsupported by substantial evidence that he would pose an unreasonable threat to public safety if he were treated in the community. Second, it impermissibly rejected a psychologist’s opinion that his symptoms would respond to treatment. We disagree and affirm. BACKGROUND Lytle had a history of violence, including against intimate partners. In 2007, he was convicted of misdemeanor inflicting corporal injury on a partner (§ 273.5). In 2012, he was convicted of misdemeanor assault with a deadly weapon (§ 245, subd. (a)(1)) and misdemeanor making of a criminal 1 Further unspecified statutory references are to the Penal Code. threat (§ 422). In 2022, Jane Doe reported to the police that Lytle had tried to gouge out her eye and had threatened to kill her. That same year, a second domestic partner reported a domestic violence incident. In 2023, Lytle was convicted of felony domestic violence against the second domestic partner (§ 273.5). The victim reported that, after drinking alcohol, Lytle had struck her in the face, causing her eye to swell shut. Later the same day, he became angry and “struck her in the face and body multiple times causing her to fall.” Then he “kicked her in the face and body multiple times while she was on the ground” and “put his hands around her neck restricting her airway . . . .” She felt close to losing consciousness. After she pushed him off and made her way outside, a witness reported that Lytle followed with a belt wrapped around his fist as though he would further assault her. A neighbor assisted her away. Lytle had broken her wrist and nose. Lytle was sentenced to time in prison and subsequently placed on postrelease community supervision (PRCS). Lytle’s counsel represented that, as part of the PRCS, Lytle had started attending outpatient group sessions for substance abuse and codependency in January 2025. Lytle has presented no evidence that he had discontinued attending the sessions. Lytle’s counsel also represented that Lytle had made a medical appointment with the goal of starting medications relating to his mental health, but that the appointment had not yet occurred when Lytle committed the offenses in this case in March 2025. On the evening of March 16, Jane Doe got mad when Lytle played music next to her when she was trying to sleep. In response, he got physically aggressive. He put his hands over her mouth and pressed her head down into her pillow. The pressure hurt and his hands interfered with 2 her breathing. She bit one of the fingers covering her mouth. He responded by biting her shoulder, causing bruising. The record does not indicate whether he had been drinking. The following evening, Lytle was drunk. As was typical when he drank, he was also angry. He got on the bed where Jane Doe was sitting. He played music loudly from his phone, dancing and flailing his arms belligerently in Jane Doe’s space. When he came close to striking her, she tried to knock his arms away. She could not escape because he was in front of her and sitting on her feet. He started yelling that he was going to kill her, repeating the threat as she tried to push him away. He punched her on the leg and on the arm, and he grabbed her hand and squeezed, telling her he could break it if he wanted to. She believed he was capable of following through both with breaking her hand and with killing her. She was terrified. The incident ended when the police came to the door. Jane Doe did not need medical attention. Lytle was arrested and charged with several offenses, including two counts of willful infliction of corporal injury on an intimate partner within seven years of a conviction under section 273.5 (§ 273.5, subd. (f)(1)), one count of threatening death and great bodily injury (§ 422), and one count of false imprisonment (§ 236). Following a preliminary hearing, the trial court held him to answer. He then moved for pretrial mental health diversion under section 1001.36. In support of his motion, he submitted a report by court-appointed psychologist Kevin T. Kelly, who diagnosed him with Substance Use Disorder (Severe) and Bipolar Disorder II. Kelly also determined that Lytle’s acts of domestic violence warranted clinical attention and treatment. In Kelly’s opinion, Lytle’s Substance Use Disorder was a significant factor in Lytle’s 3 assault on Jane Doe. In Kelly’s words, “[Lytle] was intoxicated, disinhibited, had impaired impulse control and judgment, and he was irritable and pugnacious.” He “ha[d] a history of domestic violence in close association with his problematic drinking behavior.” Kelly described Bipolar Disorder as an indirect factor because Lytle used alcohol to self-medicate his symptoms. For Lytle’s Bipolar Disorder, Kelly recommended psychiatric medication, regularly scheduled psychiatric consultation, and regularly scheduled counseling. For Lytle’s Substance Abuse Disorder, he believed that Lytle needed about six months of residential treatment followed by aftercare, including, for example, counseling, Alcoholics Anonymous meetings, and a sponsor. And for Lytle’s propensity to engage in domestic violence, he recommended 52-week domestic violence or anger management training and other actions. Kelly opined that the risk was low to moderate that Lytle would harm an intimate partner during treatment. And he listed the parts of treatment that would mitigate the risk. But he also listed several factors suggesting that Lytle might not be amenable to treatment or that treatment might not prevent harm to an intimate partner. First, Kelly noted, Lytle’s alcohol use patterns were severe and recurrent. Second, Lytle was susceptible to relapse due to unforeseen stressors. Third, the cycle of domestic violence is widely variable, making it difficult to predict or assess risk. Fourth, Lytle was on PRCS when he assaulted Jane Doe in March 2025, presumably showing that Lytle could relapse—with harmful consequences to an intimate partner— even while under supervision. Fifth, there was a risk Lytle would resume an intimate relationship too quickly, increasing the risk that he would engage in domestic violence. Kelly ultimately deferred to the court to assess whether the risks he identified amounted to unreasonable risk that Lytle would 4 commit one of the violent felonies specified in section 667, subdivision (e)(2)(C)(iv), i.e., a so-called “super strike.” (See Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890; §667, subd. (e)(2)(C)(iv).) On cross-examination at the motion hearing, Kelly testified that he did not know if the case management services Lytle would receive through diversion would differ significantly from the services Lytle had received through PRCS. If Lytle had been attending group therapy during the period when he drank and attacked Jane Doe, then Kelly’s estimation of Lytle’s ability to use information about relapse prevention would decrease. And, he acknowledged, “domestic violence does bring unpredictable, unforeseen risks of lethality because it—it is a violent offense that alcohol disinhibits, and would increase the risk of lethality, if violence were to occur.” Kelly also testified that, at the time of the March 2025 assaults, Lytle chose not to take medication for his Bipolar Disorder because he preferred to drink alcohol and he did not like how the substances interacted. Further, the diversion treatment program that Lytle would enter would not enforce sobriety; it would offer only the services that would help a person to choose to maintain sobriety. Even during the residential part of the proposed treatment, Lytle would be able to access alcohol. The trial court denied Lytle’s motion, finding “clear and compelling evidence” that Lytle likely would commit a super strike if granted diversion. Lytle pled guilty to one count of assault causing injury to a dating partner while having a prior conviction (§ 273.5) and one count of making a criminal threat (§ 422). The court sentenced him to four years in prison. DISCUSSION Pretrial mental health diversion postpones prosecution “to allow the defendant to undergo mental health treatment . . . .” (§ 1001.36, subd. (f)(1).) 5 At the close of the diversion period, if the defendant has performed satisfactorily, the court dismisses the pending charges. (Id., subd. (h).) The purpose of diversion “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.” (§ 1001.35, subds. (a)–(c).) To succeed on a motion for diversion, the defendant must be both eligible and suitable for the program. (§ 1001.36, subds. (a), (b), & (c).) One suitability requirement is that “[t]he defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.” (§ 1001.36, subd. (c)(4).) An “unreasonable risk of danger to public safety” under section 1170.18 means an unreasonable risk that the defendant will commit a super strike offense (see § 677, subd. (e)(2)(C)(iv)). (§ 1170.18, subd. (c).) Murder and attempted murder are super strikes. (§ 677, subd. (e)(2)(C)(iv)(IV).) We review a trial court’s denial of a motion for mental health diversion for abuse of discretion. (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147.) “ ‘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.) 6  I. Lytle contends that the trial court abused its discretion because insufficient evidence supports its conclusion that he posed an unreasonable risk of danger to public safety. We disagree. In determining whether a defendant will pose such a risk, “[t]he 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).) Here, substantial evidence relating to these factors supports the trial court’s conclusion that, were Lytle treated in the community, there would be an unreasonable risk that he would murder or attempt to murder an intimate partner. First, there are Lytle’s prior convictions, which involved violence and which had escalated from misdemeanors to felony infliction of corporal injury involving broken bones. One prior conviction involved assault with a deadly weapon. In the assault leading to Lytle’s 2023 felony conviction, Lytle strangled his victim to the point that she came close to losing consciousness. It appears that he stopped his assault only when she made her way outside and a neighbor assisted her. Second, there are the circumstances of the charged offenses. Lytle trapped Jane Doe, punched her, threatened to break her hand, and threatened to kill her. Jane Doe believed that he was capable of following through on his threats, and she was terrified. He did not stop the assault until the police arrived. Third, the March 2025 assaults occurred while Lytle was on PRCS and, it appears, during a period in which he was attending group sessions for 7 substance abuse. From this evidence, the trial court reasonably could infer a heightened risk that Lytle would seek and consume alcohol were he treated in the community. Fourth, Kelly agreed that, even in the initial residential part of the diversion treatment plan, Lytle would be able to access alcohol. Further, Lytle could do so while appearing to cooperate with the plan, though he explained that the treatment plan had components to mitigate that risk, such as urine testing and program workers who could recognize if Lytle were drinking. Fifth, Kelly was equivocal about whether Lytle posed an unreasonable risk of committing a super strike. He opined that the risk was low to medium that Lytle would assault a domestic partner during treatment. But he noted that it was difficult to predict or assess the risk of domestic violence, and identified reasons to think that Lytle was not amenable to treatment. In particular, Lytle was susceptible to relapse based on his severe and recurrent use of alcohol and he had already returned to drinking and had assaulted Jane Doe while under supervision. Alcohol use, Kelly testified, increases the risk that an assault will turn lethal. In addition, his view of whether treatment would keep Lytle from drinking would be diminished if he knew that Lytle had been attending group sessions during the same period that he was getting drunk and assaulting Jane Doe. Even before the prosecutor presented him with the possibility that Lytle had been attending group sessions, Kelly had declined to opine that Lytle did not pose an unreasonable risk of committing a super strike. Lytle argues that his threats to kill Jane Doe are not sufficient to show that he posed an unreasonable risk. But, as discussed above, the threats are not the only evidence supporting the trial court’s finding. We find 8 distinguishable the cases that Lytle cites in which defendants made death threats but the courts of appeal reversed denials of mental health diversion. In Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 680, the defendant participated in the violent robbery of a victim. After one of the other perpetrators had hit the victim over the head and the victim had gotten up and started to run away, the defendant said, “get his ass, kill his ass.” (Ibid.) The court noted that, as here, the defendant had no prior super strike conviction or charge, and the pending charge was not a super strike offense. (Id. at p. 690.) But unlike here, the defendant had no prior criminal history, had not touched the victim, and had been in the community for a year without any charges being filed against her for another offense. (Ibid.) These latter facts distinguish Gomez. The defendant in People v. Whitmill, supra, 86 Cal.App.5th 1138 fired a shot in the air in the vicinity of his girlfriend and her friend when the friend approached the defendant. (Id. at p. 1142.) The defendant then walked toward the girlfriend, pointed a finger at her, and ran away. (Id. at p. 1143.) According to a police officer, the girlfriend told him that the defendant, before running away, had said, “Bitch, I will kill you.” (Ibid.) The girlfriend testified that, actually, a bystander had walked up after the incident and said, “Bitch, is he going to kill you?” (Ibid.) As in Gomez, the court noted that the defendant had no prior super strike conviction. (Id. at p. 1151.) But, also as in Gomez, other facts distinguish the case. The defendant had no prior convictions involving violence, he did not harm or attempt to harm anyone in the charged incident, he ran away rather than continuing or escalating the conflict, and he had found substance abuse treatment in the past to be helpful. (Id. at pp. 1151–1153.) 9  The remaining cases involving death threats that Lytle cites are similarly distinguishable. (See People v. Williams (2021) 63 Cal.App.5th 990, 997–998, 1003 [defendant charged with stalking and making threat had no history of prior arrests or convictions, he had not physically harmed anyone, and two psychologists opined that likelihood of reoffending was very low]; People v. Moine, supra, 62 Cal.App.5th 440, 446, 450–451 [defendant did not harm anyone in connection with death threats, none of his prior convictions involved a violent felony, and court had released him into community for two years—necessarily finding that he was not likely to cause great bodily harm to others]; Flareau v. Superior Court (2026) 118 Cal.App.5th 681, 692–693 [trial court did not address suitability, denying motion based on “residual discretion”].) Based on the foregoing decisions, and those in which courts of appeal have affirmed denials of mental health diversion, Lytle suggests that prior “strike” offenses2 and super strikes are significant factors in an unreasonable risk analysis. Therefore, Lytle concludes, we should not uphold the trial court’s finding because he has no strike or super strike offenses in his record. We agree with his premise, but not with his conclusion. When a defendant is charged with a strike or super strike offense, or when a defendant has a criminal history involving such an offense or offenses, a court of appeal is likely to uphold a finding that the defendant would pose an unreasonable risk of committing a future super strike. (See People v. Graham (2024) 102 Cal.App.5th 787, 799 [defendant convicted of two super strikes]; cf. People v. Hall (2016) 247 Cal.App.4th 1255, 1265–1266 [affirming denial of resentencing under § 1170 where defendant had two prior “strike” convictions 2 A “strike” offense is a “serious felony” under section 1192.7, subdivision (c), or a “violent felony” under section 667.5, subdivision (c). 10 for robbery]; People v. Jefferson (2016) 1 Cal.App.5th 235, 242 [affirming denial of resentencing under § 1170 where defendant had history of “strike” offenses, including robbery, burglary, and assault with firearm].) But section 1001.36, subdivision (c)(4) creates no litmus test. It allows a trial court to consider, along with other factors, a defendant’s “violence and criminal history”—not just whether the defendant has committed a strike or super strike offense. (See People v. Henn (2026) 124 Cal.App.5th 173, 183 [finding relevant that defendant had misdemeanor domestic battery conviction and uncharged domestic violence incident showing a pattern or history of domestic violence].) Lytle next argues that the trial court misunderstood Lytle’s conduct as escalating and that the relatively minor injuries suffered by Jane Doe in the March 2025 assaults suggest that he is not likely to commit a super strike. We do not agree. In characterizing Lytle’s conduct, the trial court looked at Lytle’s overall criminal record, noting the progression from misdemeanor to felony. In assessing the severity of the March 2025 assaults, the court focused on Lytle’s conduct, finding significant that Lytle had trapped Jane Doe and had threatened to kill her. As the Attorney General notes, the severity of a victim’s injury is neither an element of any offense charged in connection with the March 2025 assaults nor an enumerated consideration in section 1001.36, subdivision (c)(4). We do not mean to imply that the extent of a victim’s injuries is not relevant. We conclude only that here the relatively minor nature of Jane Doe’s injuries does not negate the substantial evidence that supports the trial court’s finding. Lytle also argues that the trial court failed to consider that he did not use a deadly weapon in the March 2025 assaults, and that he has no history of using weapons. In fact, Lytle’s criminal history includes a misdemeanor 11 conviction for assault with a deadly weapon. Even if it did not, Lytle’s conduct without a weapon supports the trial court’s finding. Lastly, Lytle argues that the trial court’s “residual discretion” under section 1001.36 would not allow the trial court to deny his motion. We do not address this contention. The trial court made its ruling under section 1001.36, subdivision (c)(4), based on a finding that Lytle would pose an unreasonable threat to public safety were he treated in the community. Substantial evidence supports the finding. II. In his reply brief, Lytle raises for the first time an argument that the trial court erred by applying the wrong legal standard when it purportedly disregarded Kelly’s assessment of whether Lytle’s symptoms would respond to mental health treatment. We ordinarily will not consider such an argument because doing so would unfairly prejudice the other side. (Reichhardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) But even if we were to consider the argument, we would find no basis for reversal. To meet one of the criteria of suitability, a defendant must present “the 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).) That Lytle did so in this case is beside the point. The trial court did not reject Kelly’s assessment. Instead, the trial court implicitly found, based on substantial evidence in the record, that there was an unreasonable risk that Lytle would violate his treatment plan by drinking alcohol and then lethally assault an intimate partner. 12  DISPOSITION The judgment is affirmed. GOLDMAN, J. WE CONCUR: BROWN, P. J. GORDON, J.* * Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 13