People v. Brown CA1/1

Filed 11/9/26 P. v. Brown CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE THE PEOPLE, Plaintiff and Respondent, A174756 & A174961 v. SHALIA TANGLIA ELIZEBATH (San Francisco City & County BROWN, Super. Ct. Nos. CR23016715 & CRI23017095) Defendant and Appellant. In these consolidated cases, defendant Shalia Tanglia Elizebeth Brown appeals from the denial of her petitions for developmental disability diversion (Pen. Code, § 1001.20 et seq.).1 Because the record indicates the trial court did not fully understand the inquiries required by this particular diversion statute, we conditionally reverse and remand for further proceedings. All statutory references are to the Penal Code unless otherwise 1 specified. 1  BACKGROUND Summary of Offenses2 The charges in these two cases stem from Brown’s participation in a series of group robberies of retail stores in San Francisco during October 2023. On October 1, Brown entered a CVS pharmacy with at least five other people (some wearing ski masks) and began “grabbing items.” Brown was holding a duffel bag and running with items in her hand when a store employee pushed her to the floor. Brown pulled out a “splatter gun”3 and shot the employee in the face between 30 and 100 times. Coparticipants repeatedly punched the employee in the face. The employee suffered a broken nose, a black eye, a concussion, and pain in his left arm and right knee. Together, the group took merchandise exceeding $600 in value. Several days later, Brown entered a Walgreens with a group of five or six people who quickly spread out through the store. Brown pulled a cart or wagon, which was filled with items. Video surveillance recorded Brown exhibiting pepper spray to a security guard so he would not stop her from absconding from the store. The security guard described Brown as the “captain of the looting.” Brown and her cohorts took merchandise exceeding $2,000 in value. Subsequent to that robbery, police officers conducted a retail theft operation at a Walgreens. Through live video surveillance, they saw eight 2We take this summary from the preliminary hearing transcripts in these matters, along with the corresponding police reports. 3 A splatter gun is a toy gun designed to shoot water-based gel balls or beads. The device can shoot in “ ‘Fully Automatic’ ” mode at 10 rounds per second with a velocity of 160+ feet per second. It has a 750 round capacity. The police officer who inspected the splatter gun used in this incident noted it still had a large number of gel pellets in its reservoir. 2 people, including Brown, with bags, backpacks, and a wagon enter the store. Some were wearing masks. This time, Brown had a stroller and brought her child with her. The child’s father was also present and had a wagon. The two were attempting to remove merchandise from the wagon and stroller when officers detained them. All told, the group attempted to take merchandise exceeding $1,500 in value. Information in Case A (CRI23017095) The San Francisco City and County District Attorney filed an information with respect to the first two incidents, charging Brown and two codefendants with felony second degree robbery (§ 211, count I (Oct. 1)); misdemeanor organized retail theft with intent to sell merchandise (§ 490.4, subd. (a)(1), count II (Oct. 1)), misdemeanor commercial shoplifting (§ 459.5, subd. (a), count III (Oct. 1)); felony second degree robbery (§ 211, count IV (Oct. 3)); felony organized retail theft with intent to sell merchandise (§ 490.4, subd. (a)(1), count V (Oct. 3)); felony second degree commercial burglary (§ 459, count VI (Oct. 3)); and felony grand theft of real property (§ 487, subd. (a), count VII (Oct. 3)). With respect to count I, the information further alleged that Brown personally inflicted great bodily injury upon an employee within the meaning of section 12022.7, subdivision (a). Several aggravating circumstances were also alleged with respect to Brown, including: (1) the crimes involved great bodily harm or threat thereof; (2) the crimes were carried out in a way that indicated sophistication, planning, or professionalism; and (3) the crimes involve takings of great monetary value. (See Cal. Rules of Court, rule 4.421(a)(1), (8) & (9).) Information in Case B (CR23016715) The San Francisco City and County District Attorney also filed an information with respect to the third incident, charging Brown and two 3 codefendants with felony second degree commercial burglary (§ 459, count I (Oct. 11)); felony attempted grand theft of personal property (§§ 487, subd. (a), 664, count II (Oct. 11)); misdemeanor attempted organized retail petty theft with intent to sell merchandise (§§ 490.4, subd. (a)(1), 664, count III (Oct. 11)); and felony conspiracy to commit a crime (§ 182, subd. (a)(1), count IV (Oct. 11)). With respect to Brown, the information alleged as an aggravating circumstance that the crime was carried out in a way that indicated sophistication, planning, or professionalism. (Cal. Rules of Court, rule 4.421(a)(8).) Developmental Disability Diversion Requests After unsuccessfully seeking mental health diversion (§ 1001.35 et seq.), Brown filed requests for developmental disability diversion, asserting she was charged with qualifying crimes and appeared to be eligible for diversion. Brown stated therein that she consented to developmental disability diversion, was prepared to waive her right to a speedy trial, was willing to comply with an appropriate treatment program, and did not pose an unreasonable risk of danger to public safety within the meaning of section 1170.18. The trial court ordered the prosecutor, the probation department, and the regional center to prepare the necessary reports for the court’s consideration. Regional Center Report The Regional Center of the East Bay submitted a report that concludes Brown is developmentally disabled because she meets the diagnostic criteria for Autism Spectrum Disorder and she meets the eligibility criteria for regional center services because she is substantially disabled in the areas of receptive and expressive language, learning, self-direction, and economic self- 4 sufficiency. Her autism is also an eligible condition, as it originated prior to age 18 and is likely to continue indefinitely. According to the report, Brown received special education services throughout her school years and eventually dropped out of high school. She was removed from her mother at age 13 and had multiple placements in the foster care system. At the time of the evaluation, Brown’s son was six years old, and they had lived together in hotels prior to her incarceration. Brown was employed as a cook from 2019 through 2023 as a participant in the Youth and Employment Skills Program, but the job concluded upon her graduation from the program. She also received her high school diploma through the program. Brown was working as a cook in the jail while incarcerated. There was no noted history of substance abuse. Brown presented at the evaluation with adequate eye contact but with noticeably flat affect. She spoke clearly but used simple language, displaying verbal development that was less than what would be expected of someone her age. Her demeanor similarly appeared younger than would be expected at her age. Brown tested as low average in verbal comprehension, perceptual reasoning, processing speed, and general ability index. Her working memory and full scale IQ score was borderline. Brown’s mother stated, among other things, that Brown is not good at reading social cues and can be vulnerable to those who want to take advantage of her. Many people who Brown has associated with in the past have exploited her, and she may not have realized they did not have her best interests at heart. The regional center evaluator concluded an autism diagnosis fully accounts for Brown’s core deficits, given her early language delays, history of outbursts, and issues related to lack of independence. However, it was also 5 noted Brown presents with certain strengths, including certain specific cognitive abilities, her commitment as a mother, and resilience. The evaluator concluded that, with proper support and services, Brown could improve her overall function. Recommended services included case management, behavioral treatment to target specific maladaptive behaviors and increase socially appropriate behavior, mental health assessment and treatment, and vocational training with job-related support. Several months later, the regional center provided a supplemental report stating, “Brown would benefit from a number of services available through a diversion plan, if she is willing to participate.” The proposed diversion plan included: (1) requiring Brown to obey all laws; (2) participation in the regional center’s “24-hour awake staff supervision and support” through its forensic Supported Living Services, while residing in a private residence funded by the center; (3) obtaining supported employment or participation in a day program after the regional center provides vocational resources to determine which path best aligns with Brown’s dreams and goals; (4) supported medical oversight and medication management; (5) supported mental health assessment and participation in mental health services as deemed appropriate; (6) weekly contact with her case manager; (7) participation in a Healthy Living Program funded by the regional center which is constructed for providing therapy or behavioral modification treatment to clients who have been exposed to trauma or abuse, are experiencing difficulty behaving appropriately after major life transitions, or who are experiencing difficulty with emotional regulation or impulse control; and (8) weekly forensic support services through the Crisis Response Project, along with access to a 24/7 crisis response team if in need of additional support. 6  As the regional center is a voluntary, nonprofit agency with no law enforcement capabilities, the report “strongly” recommended dual agency supervision with the probation department for the proposed diversion program, with the regional center being the primary supervising agency. It further recommended that the diversion program continue for the two-year maximum, with the regional center providing a progress report every six months. (See § 1001.28.) And, if at any time during this period, there was an inability to engage Brown in participating in the diversion plan, the regional center would notify the court, the prosecution, and the defense. Probation Report The probation department recommended against developmental disability diversion. The report stated Brown had been in and out of juvenile hall between the ages of 15 and 18. She reported past trauma, including sexual assault and domestic violence. While she received treatment and medication for her mental health issues in juvenile hall, she stopped taking her medication six months after being released. She reportedly began drinking at age 11 and used cocaine powder/crack between the ages of 13 and 18. Prior to her current arrest, she smoked marijuana, methamphetamine, MDMA (also known as Molly), and mushrooms. According to probation, Brown “has never participated in any substance counseling or programs, and it appears that she may not realize she has a substance abuse issue.” Brown indicated her desire to return to school to advance her cooking skills. Probation was of the view that Brown was not suitable for developmental disability diversion because, at the time of the current offenses, she was on probation in both Napa and Alameda counties under informal supervision. In Napa, she had an outstanding warrant for missing her booking release which could be resolved by contacting the court or post- 7 court services. In Alameda, she was sent to pretrial monitoring informally and thus there was no available information regarding her compliance. Probation also pointed out that the two recent retail theft incidents involved violence–Brown’s use of a splatter gun against a store employee in one store and her brandishing a can of pepper spray at an employee in another store. Probation went on to state: “Although it is acknowledged that she has been diagnosed with Autism and additional mental health challenges, it does not appear that those impacted her alleged actions in these cases, as she was not a passive participant but rather engaged in some planning regarding these thefts. The defendant’s continued criminal thinking, substance abuse issues, and neglect to take her mental [health] medications appear to be hindering her ability to refrain from criminal activity. It appears that prior informal supervision did not benefit Ms. Brown. She may best be served through more intensive supervision, through a grant of probation, in conjunction with working with [the regional center].” Prosecution’s Opposition The prosecutor maintained Brown was not suitable for diversion due to her history of failing to follow court orders and the threat she posed to public safety. In support of these arguments, the prosecutor asked the trial court to take judicial notice of the related preliminary hearing transcripts and its opposition to Brown’s previously filed request for mental health diversion. Denial of Diversion and Plea At the outset of the hearing, the trial court commented that defense counsel had provided “animpressive list, or a collection of certificates, of the wayMs. Brown has been making constructive use of her time incustody– parenting, various artistic endeavors, and other pursuits.I really appreciate 8 that. I think that really speakswell, and it is great.” The court then invited argument. Defense counsel argued that what “this case truly reflects is not a calculating, hardened criminal, but a young woman whose developmental disability renders her highly vulnerable to exploitation, poor judgment under stress, and susceptibility to manipulation by others.” He further urged that “the pattern of these incidents demonstrate impulsivity and poor executive functioning consistent with herdisability.” He asserted “diversion offers a path forward that protects public safety more effectively than incarceration.” The prosecutor, in turn, observed that regional center services are voluntary so “it would be very important in this particular case ifthis Court were going to grant developmental disability for diversion for Ms. Brown, that it be dual supervision.Which would mean not only is she having to comply with the regionalcenter’s treatment plan, but also that [probation] would be supervising that to ensure compliance.” It was the prosecutor’s understanding, however, that probation felt it would be unable to supervise adequately in this case. The prosecutor continued: “I do find it compelling . . . that during her time in custody, she has been very productive.I have noted all the certificates that she has done. I know everyone in this room has been doing this for a very long time, and it is not every day that we see people in custody take advantage of the programs that are available to them in custody.I do want to acknowledge her work there.” The prosecutor also observed that had Brown accepted her offer to resolve the case, she would have been out of custody, and her current criminal matters would have been concluded. “So, if she is sitting before this Court today and still wants to take advantage–if this Court were to grant developmental disability diversion, I am going to, hopefully, take that as a good sign that instead of choosing to be 9 out of custody, and be done with this case, she is wanting to participate, she is sitting here still wanting to participate in those programs.” Defense counsel responded it was “disingenuous” for “probation to say they can’t supervise a developmental disability diversion. . . . It happens all the time. Regional center will inform probation if there’s an issue. Probation typically will do drug testing as necessary. If there’s any other things that they normally do, they could do it all with this diversion.” At the conclusion of argument, the trial court denied diversion. The entirety of its ruling is as follows: “All right.I am going to deny the petition. Let me say that it doesn’t appear to me that her disability was a significant factor in the charged crime.To the contrary, as probation pointed out, they were crimes of some degree of sophistication, planning, and execution. Of course, public safety is of great concern here and another reason for denial.Compliance and the willingness to comply is highly problematic.The violations committed while she was committed on probation previously were an indication of that. As far as what Adult Probation was saying, the way I understand it, is that if she is in diversion as opposed to actually on probation, their degree of control and leverage is much less and so at least I understand that is part of the reason why they are opposed to diversion, and that makes sense to me.” The parties thereafter reached a negotiated disposition pursuant to which Brown withdrew her not guilty pleas and pleaded guilty to second degree robbery (§ 211) as alleged in the first information and second degree burglary (§ 459) as alleged in the second information. She was sentenced to two years in the first case and 16 months in the second, to be served concurrently and released from custody on the basis of time served. 10  DISCUSSION Legal Framework Developmental Disability Diversion California’s diversion programs “generally authorize trial courts to divert eligible persons charged with qualifying offenses from the normal criminal process into treatment and rehabilitation.” (Wade v. Superior Court (2019) 33 Cal.App.5th 694, 707.) Diversion programs have “ ‘ “well established” ’ benefits.” (Id. at p. 712.) “The primary purpose of diversion is rehabilitation.” (Id. at p. 707.) Although California’s developmental disability diversion program “does not contain a codified statement of purpose, committee reports on bills amending the statutory scheme over the years confirm that the purpose underlying these statutes is to provide treatment that would rehabilitate individuals who committed crimes because of their developmental disability and deter future criminal behavior. (See Assem. Com. on Public Safety, Rep. on Assem. Bill No. 1956 (2003–2004 Reg. Sess.) as amended Mar. 18, 2004, pp. 3–4 [stating that diversion programs for people with a developmental disability allow the criminal justice system to ‘solve the problem’ of those who commit a crime ‘as a result of their disability’ and should receive treatment].)” (People v. K.D. (2025) 110 Cal.App.5th 1, 15–16 (K.D.).) K.D. aptly summarized the mechanics of developmental disability diversion as follows: “The developmental disability diversion program applies in any case where misdemeanor or most felony charges are brought against ‘any person who has been evaluated by a regional center and who is determined to be a person with a developmental disability by the regional center, and who therefore is eligible for its services.’ (§ 1001.21, subds. (a), (b).) A ‘ “[d]evelopmental disability” ’ ‘means a disability that originates 11 before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual.’ (§ 1001.20, subd. (a); Welf. & Inst. Code, § 4512, subd. (a)(1).) ‘ “Substantial disability” means the existence of significant functional limitations in three or more of the following areas of major life activity. . . : [¶] (A) Self-care. [¶] (B) Receptive and expressive language. [¶] (C) Learning. [¶] (D) Mobility. [¶] (E) Self-direction. [¶] (F) Capacity for independent living. [¶] (G) Economic self-sufficiency.’ (Welf. & Inst. Code, § 4512, subd. (l)(1).) The state contracts with and monitors regional centers that are responsible for planning and coordinating treatment services for those with qualifying disabilities. (§§ 1001.22, subd. (a), 1001.34; Welf. & Inst. Code, §§ 4434, 4501, 4620.)” (K.D., supra, 110 Cal.App.5th at p. 16.) “Section 1001.22 sets forth specific requirements for the trial courts, regional centers, probation, and counsel. Importantly, the trial court has a sua sponte duty to consult with relevant agencies (the prosecution, regional center, probation, and defense counsel) to determine whether a defendant may be diverted. (§ 1001.22, subd. (a).) When the court suspects that a defendant may have a developmental disability, ‘the [trial] court shall order the prosecutor, the probation department, and the regional center to prepare reports on specified aspects of the defendant’s case.’ (§ 1001.22.)” (K.D., supra, 110 Cal.App.5th at p. 16.) “The regional center must submit a report within 25 judicial days with three key items: (1) a determination of whether the defendant has a developmental disability and is eligible for regional center services; . . . (2) a proposed diversion program, individually tailored to the needs of the defendant as derived from the defendant’s [Individual Program Plan] (Welf. & Inst. Code, § 4646), including treatment addressed to the criminal offense 12 charged; and (3) a statement as to whether the proposed program is available for the defendant through the treatment and habilitation services of the regional centers pursuant to section 4648 of the Welfare and Institutions Code. (§ 1001.22, subd. (a).) The prosecutor is required to submit a recommendation for or against diversion. (Id., subd. (b).) And probation is required to report on specified aspects of the defendant’s case. (Id., subd. (c).) The report ‘shall be based upon an investigation by the probation department and consideration of the defendant’s age, developmental disability, employment record, educational background, ties to community agencies and family, treatment history, criminal record if any, and demonstrable motivation and other mitigating factors in determining whether the defendant is a person who would benefit from a diversion-related treatment and habilitation program.’ ” (K.D., supra, 110 Cal.App.5th at pp. 16–17.) “Upon receipt of the reports, if the defendant is found to have a developmental disability and to be eligible for regional center services, the court shall determine whether to grant diversion. (§ 1001.23, subd. (a).) ‘After consideration of [the required reports and the prosecutor’s recommendation], the defendant’s violence and criminal history, the relationship of the developmental disability to the charged offense, and the current charged offense, and any other relevant information, and the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community, the court shall determine if the defendant shall be diverted under either dual or single agency supervision, and referred for habilitation or rehabilitation diversion pursuant to this chapter. If the court does not deem the defendant a person who would benefit by diversion at the time of the hearing, the suspended criminal proceedings may be reinstituted, or any other disposition 13 as authorized by law may be made, and diversion may be ordered at a later date.’ (§ 1001.23, subd. (b).)” (K.D., supra, 110 Cal.App.5th at p. 17.) “A defendant may be diverted on single agency diversion, administered by the regional center, or dual agency diversion, administered jointly by the probation department and regional center. (§§ 1001.20, subds. (f), (g), 1001.22, subd. (b)(2)–(4), 1001.23, subd. (c), 1001.28.) The court may revoke diversion and reinstate criminal proceedings in statutorily specified circumstances. (§ 1001.29.) If a defendant is diverted and successfully concludes his or her diversion program, the criminal charges are dismissed, and the underlying arrest is deemed never to have occurred. (§§ 1001.31, 1001.33.)” (K.D., supra, 110 Cal.App.5th at p. 17.) Standard of Review We review a trial court’s decision denying developmental disability diversion for abuse of discretion. (K.D., supra, 110 Cal.App.5th at p. 18.) “A trial court abuses its discretion when its determination exceeds the bounds of reason, or its decision is so arbitrary or irrational that no reasonable person could agree with it. [Citation.] The trial court similarly abuses its discretion when its express or implied factual findings are not supported by substantial evidence.” (Ibid.) “ ‘But judicial discretion must also be “ ‘guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ” [Citation.] [¶] This understanding is essential to assess the scope of judicial discretion conferred by statute. It means that “all discretionary authority is contextual. . . .” [Citation.] A reviewing court “cannot determine whether a trial court has acted irrationally or arbitrarily . . . without 14 considering the legal principles and policies that should have guided the court’s actions.” ’ ” (K.D., supra, 110 Cal.App.5th at pp. 18–19.) Thus, a “trial court’s exercise of discretion must be informed by the rehabilitative purpose of the diversion statutes. [Citations.] The court must first be satisfied that, if treated in the community, a defendant will not pose an unreasonable risk to public safety, as defined in section 1170.18. (§ 1001.23, subd. (b).) If the court is satisfied that a defendant will not pose an unreasonable risk to public safety, the court’s determination of whether to grant diversion, and hence its consideration of the statutory criteria and information relevant to that decision, must be based upon the standard specified in the statute: whether the defendant is a person ‘who would benefit by diversion.’ ” (K.D., supra, 110 Cal.App.5th at p. 19.) The Trial Court Misapprehended the Inquiries Required by the Developmental Disability Diversion Statutes The provision of the developmental disability diversion statutes of particular relevance here is section 1001.23, subdivision (b), which states as follows: After consideration of the probation department’s report, the report of the regional center, the report of the prosecutor relating to the prosecutor’s recommendation for or against diversion, the defendant’s violence and criminal history, the relationship of the developmental disability to the charged offense, and the current charged offense, and any other relevant information, and the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community, the court shall determine if the defendant shall be diverted under either dual or single agency supervision, and referred for habilitation or rehabilitation diversion pursuant to this chapter. If the court does not deem the defendant a person who would benefit by diversion at the time of the hearing, the suspended criminal proceedings may be reinstituted, or any other disposition as authorized by law may be 15  made, and diversion may be ordered at a later date. As the statutory language reflects, a court considering developmental disability diversion must make two pivotal findings: First, that the defendant, if granted diversion, would “not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18.” (§ 1001.23, subd. (b).) Second, that the defendant is “a person who would benefit by diversion at the time of the hearing.” (Ibid.; see K.D., supra, 110 Cal.App.5th at p. 27 [“after” court determines defendant is “eligible and would not present an unreasonable risk to public safety,” relevant question is “whether, in light of purposes of the disability diversion scheme, defendant would benefit from diversion-related treatment”].) Thus, the initial question before the court is whether the defendant, if granted diversion, would “pose an unreasonable risk of danger to public safety, as defined in Section 1170.18.” (§ 1001.23, subd. (b); K.D., supra, 110 Cal.App.5th at p. 19 [“The court must first be satisfied that, if treated in the community, a defendant will not pose an unreasonable risk to public safety, as defined in section 1170.18.”].) The Legislature added this “as an express factor for the court’s consideration in 2021 when it expanded [the developmental disability] diversion scheme” to apply to most felony cases. (K.D., at p. 24, citing Stats. 2020, ch. 11, §§ 17, 21.) Section 1170.18, referenced in section 1001.23, subdivision (b), defines “ ‘unreasonable risk of danger to public safety’ ” to mean “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 clause, in turn, itemizes eight categories of offenses—sexually violent offenses, oral copulation with a child under 14, lewd or lascivious act with a child under 14, homicide, solicitation to commit murder, assault with a machine gun on a 16 peace officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by life imprisonment or death—colloquially referred to as ‘super strikes.’ ” (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149 (Whitmill) [addressing mental health diversion]; see Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690 (Gomez) [addressing mental health diversion; no substantial evidence that the defendant was “likely to commit a super-strike offense if treated in the community,” italics added].) In determining whether the defendant is likely to commit a super- strike offense if treated in the community, the court can consider “the probation department’s report, the report of the regional center, the report of the prosecutor relating to the prosecutor’s recommendation for or against diversion, the defendant’s violence and criminal history, the relationship of the developmental disability to the charged offense, and the current charged offense, and any other relevant information.” (§ 1001.23, subd. (b); see, e.g., People v. Henn (2026) 2026 WL 3121267, at p. *7 (Henn) [affirming denial of mental health diversion as substantial evidence supported finding defendant “posed an unreasonable risk of committing a super strike based on his criminal history and the facts of the underlying offense”4]; Whitmill, supra, 86 Cal.App.5th at pp. 1150–1151 [reversing denial of mental health diversion as no substantial evidence supported finding defendant was likely to commit 4 The mental health diversion statutory scheme specifies the trial court must find that the defendant “will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community,” and in making such finding, 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).) 17 super strike].) If the court finds the defendant would not “pose an unreasonable risk of danger to public safety, as defined in Section 1170.18,” the court must then decide whether the defendant is “a person who would benefit by diversion at the time of the hearing.” (§ 1001.23, subd. (b).) In making this determination, the court can take into account many of the same factors appropriately considered in determining whether the defendant poses an unreasonable risk of danger to public safety, as defined in Section 1170.18. (See K.D., supra, 110 Cal.App.5th at pp. 23–26 [in determining whether the defendant is a person who would benefit by diversion, court can consider the defendant’s criminal history (including past convictions, number of times defendant has been granted probation, and defendant’s performance on probation), the charged offense, and the “relationship between the developmental disability and the charged offense,” but cannot consider punishment-driven factors].) With this analytical framework in mind, we turn to the trial court’s denial of Brown’s requests for diversion. As we have recited, the trial court denied Brown’s developmental disability diversion requests on essentially two grounds—her developmental disabilities were not “a significant factor in the charged crimes,” and “public safety is of great concern.” Both stated grounds reflect a misunderstanding or lack of clarity as to the court’s tasks under this particular diversion scheme. Relationship of Disability to Crimes The trial court appears to have considered the initial question before it to be whether Brown’s “disability was a significant factor in the charged crime,” as the court’s first stated ground for denying diversion was that it did 18 not appear that her developmental disabilities were a “significant factor in the charged crime.” However, “unlike other diversion statutes, section 1001.23, subdivision (b) does not include a stand-alone requirement that the defendant prove that his or her developmental disability was a significant factor in the commission of the charged crime.” (K.D., supra, 110 Cal.App.5th at p. 24.) Rather, as K.D. explains, in the developmental disability context, the court is to consider only whether there is a “relationship” between the developmental disability and the charged offense. (See, e.g., K.D., supra, 110 Cal.App.5th at pp. 26–27 [charged crimes are to be considered only “as they relate to” whether the defendant would benefit from diversion-related conduct and not as to the need for, or appropriateness of, punishment, italics omitted].) In short, the trial court commenced its consideration of Brown’s diversion requests with a legal misstep. K.D. provides a ready tutorial on assessing the “relationship” between a defendant’s developmental disability and the charged crime. After explaining why the trial court in that case had not erred in considering the relationship between the defendant’s developmental disability and the charged offense in determining whether the defendant would benefit from rehabilitative treatment (K.D., supra, 110 Cal.App.5th at p. 24 [“the existence of a relationship between the developmental disability and the charged offense has always been relevant to the fundamental assessment of whether a defendant would benefit from rehabilitative treatment”]), the appellate court turned to whether the lower court had erred in finding there was “no relationship” between the defendant’s developmental disability and the 19 charged offenses. (Id. at p. 25.) The People conceded the trial court had erred, and the appellate court agreed, stating the “defendant had a moderate intellectual disability with substantial cognitive delays and substantially impaired adaptive skills in the areas of learning, self-care, self-direction, economic self-sufficiency and independent living,” and she “had deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience,” as well as “deficits in adaptive functioning that result[ed] in failure to meet developmental and sociocultural standards of personal independence and social responsibility.” (K.D., supra, 110 Cal.App.5th at p. 25.) Without ongoing support, the “defendant’s adaptive deficits limited her functioning in one or more activities of daily life, such as communication, social participation, and independent living across multiple environments, such as home, work, and community,” well illustrated by her circumstances at the time of the crimes, e.g., she “did not have a fixed residence, she was supporting herself by panhandling,” and she thought hijacking a parked car with keys in the ignition and a baby in the back seat was “her chance to ‘ “go home.” ’ ” (Ibid.) We make no comment on the record in the instant cases. Rather, we leave it to the trial court on remand to assess the “relationship” of defendant’s developmental disability to the charged offenses. Public Safety The trial court’s second stated ground for denying diversion was “public safety is of great concern here” because “[c]ompliance and the willingness to comply is highly problematic” as evidenced by “[t]he violations committed while she was committed on probation.” Again, this stated ground does not 20 align with the assessment called for by this diversion scheme. As discussed above, the first question a court presented with a developmental disability diversion request must address is whether the defendant, if granted diversion, would “pose an unreasonable risk of danger to public safety, as defined in Section 1170.18.” (§ 1001.23, subd. (b); K.D., supra, 1 Cal.App.5th at p. 24.) This entails determining whether the defendant is “likely to commit a super-strike offense if treated in the community.” (Gomez, supra, 113 Cal.App.5th at p. 690, italics added; see K.D., supra, 110 Cal.App.5th at p. 21 [after concluding defendant did not pose “ ‘an unreasonable risk as defined by 1170.18,’ ” court found “ ‘placing her on diversion would not benefit her at this time’ ”].) The trial court here neither acknowledged nor answered this threshold question. Indeed, it did not even summarily state, as did the court in K.D., that the court did not “think she poses an unreasonable risk as defined by [section] 1170.18.” (K.D., supra, 110 Cal.App.5th at p. 21.) The parties appear to have assumed the trial court ruled “public safety [was] of great concern” in the context of assessing whether Brown was “a pers