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Mental Health Diversion in California Criminal Cases – Penal Code 1001.36

Posted by Philip Israels | Jul 30, 2019

Mental Health Diversion is a form of pretrial diversion that allows defendants, even in relatively serious felony cases, to potentially earn a dismissal of their charges through participation in a mental health counselling and treatment program. Mental Health Diversion is the newest form of diversion under California law, having only become effective in June of 2018 after passage of California Senate Bill 215. 

The most important requirement for eligibility for Mental Health Diversion is, as the name implies, that the defendant suffer from a serious mental health issue. These can include bipolar disorder, schizophrenia, post-traumatic stress disorder, and others. 

Several mental health issues are specifically exempted from eligibility, however. These include antisocial personality disorder, borderline personality disorder, and pedophilia.

If the defendant's only mental health concern falls into this second category, Mental Health Diversion is not available as an option for disposition of the case. Our California criminal defense lawyers provide a description of the program below.

Eligibility for Mental Health Diversion in California

Proving that the defendant suffers from a mental health issue which qualifies for Mental Health Diversion generally requires an evaluation from a qualified expert such as a clinical psychologist or psychiatrist.

The expert will typically meet with the defendant in person on at least one occasion, review the defendant's past medical and counselling records, if any, and read the incident reports in the case to understand how the mental health issues of the defendant contributed to their conduct.

To be eligible for Mental Health Diversion, the defendant must not only suffer from a qualifying mental health disorder, but also that disorder must have played a significant role in the alleged unlawful conduct. Put another way, the mental health issue must have been a significant factor in the commission of the crime.

Under California Penal Code 1001.36 Mental Health Diversion, defendants who have been charged with a misdemeanor or felony crime could be eligible. However, a judge will typically only allow you to enter the program if certain conditions are satisfied. An overview of these conditions include:

  • You suffer from a mental condition other than antisocial personality disorder
  • Your mental disorder was a major factor in why you committed the crime
  • A mental health professional says you would respond to treatment
  • You agree to participate in Diversion and waive you right to a speedy trial
  • You agree to mental health treatment as a condition of diversion
  • The court believes you are not a high risk or danger to the public

To establish whether or not this criterion is met, the judge will evaluate the police reports, the preliminary hearing transcript, if a preliminary hearing has already occurred, and the expert evaluation of the defendant.

There is no hard and fast rule to determine beforehand whether a mental health issue will be found to be a significant factor in the offense. The court has broad discretion when making this determination.

Assuming a serious mental health issue exists, and it played a significant role in the crime, the defendant must further be found to be likely to respond well to treatment.

The specific recommendations for treatment and the explanation of their expected results is another important portion of an effective expert report in support of Mental Health Diversion.

The defendant must also be willing to accept treatment and satisfy the court that they will successfully complete the ordered treatment if afforded the opportunity to participate in Mental Health Diversion. The program is not available in some felony cases unless the prosecutor gives consent, such as child pornography, drug crimes, manslaughter, among others.

Public Safety Risk

Finally, the court must find that the defendant does not pose a significant danger to public safety. In practical terms, this renders offenders charged with certain crimes, or those with extensive criminal histories, likely ineligible as it will be difficult to argue that the public would not be endangered if the defendant were to eventually earn a dismissal or charges rather than the lengthy prison sentence they would otherwise receive.

Again, the judge has broad discretion to weigh the risk to the public of allowing Mental Health Diversion and will be guided by all of the documents on file in the case in making the public safety determination.

Once all eligibility criteria have been satisfied, the defendant must waive his or her right to a speedy trial.  The defendant will then be given a treatment plan under the supervision of the court.

Treatment can be inpatient, outpatient, or a combination of both, and can last for up to two years.  The court will order regular progress reports and will seek updates from the treatment provider(s), the defendant, and defense counsel.

How Long Does the Mental Treatment Program Last?

The length of a California Penal Code 1001.36 Mental Health Diversion program typically last no longer than two years. It includes inpatient care or outpatient care, or both.  Before a judge will grant a mental treatment program, they will consider oral arguments from your lawyer and the prosecutor. They will also consider your specific needs and best interest of the public.

The cost of the mental health diversion can come from public or private funds. If you can't afford private treatment, you will be referred to a county mental health agency or another court. The county mental health agency must agree to accept responsibility of providing treatment.

If the defendant fails to complete the treatment plan, or commits another violation such as being arrested for a new misdemeanor or felony crime, the court can terminate Mental Health Diversion early.

Charged with a California Crime? Contact Us for Help

In sum, Mental Health Diversion provides a statutory scheme that allows some defendants who would not have had any realistic avenue for dismissing their serious criminal cases with a new opportunity to keep their criminal records clear.

Through a commitment to intensive mental health treatment, defendants can earn a complete dismissal of even serious felony charges.

If you or a family member has been charged with a crime and has a history, diagnosed or undiagnosed, of mental health issues, our attorneys can consult with you regarding the opportunity to petition the court for Mental Health Diversion. The Mental Health Diversion statute also applies retroactively to certain categories of defendants who have already been convicted, and as such, there may be appellate opportunities available.

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About the Author

Philip Israels

Phil Israels was raised in California's Central Valley where he still has family. After graduating from the University of California at Berkeley where he was a member for Zeta Beta Tau fraternity and studied Economics, he continued his education...

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