Mental Health Diversion, the newest form of diversion under California law, is a unique pretrial diversion that offers defendants, even in relatively serious felony cases, the potential to have their charges dismissed through participation in a mental health counseling and treatment program. This innovative program came into effect in June 2018 following the passage of California Senate Bill 215.
The most important requirement for eligibility for Mental Health Diversion is, as the name implies, that the defendant suffers 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 describe the program below.
Eligibility for Mental Health Diversion in California
Proving that the defendant suffers from a mental health issue that 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 counseling records, if any, and read the incident reports in the case to understand how the defendant's mental health issues 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 includes:
- 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 your 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 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.
Another important portion of an effective expert report supporting mental health diversion is the specific recommendations for treatment and the explanation of the expected results.
Another crucial aspect of Mental Health Diversion is the defendant's willingness to accept treatment and their commitment to completing the ordered treatment if given the opportunity to participate. It's important to note that the program is not available in some felony cases unless the prosecutor gives consent, such as in cases involving child pornography, drug crimes, and 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 court will then supervise the defendant's treatment plan.
Treatment can be inpatient, outpatient, or a combination of both and last up to two years. The court will order regular progress reports and seek updates from the treatment provider(s), the defendant, and the defense counsel.
How Long Does the Mental Treatment Program Last?
The length of a California Penal Code 1001.36 Mental Health Diversion program, which typically lasts up to two years, is determined by the judge. The judge will consider oral arguments from your lawyer and the prosecutor, your specific needs, and the best interest of the public before granting a mental treatment program.
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 for providing treatment.
Suppose the defendant fails to complete the treatment plan or commits another violation, such as being arrested for a new misdemeanor or felony crime. In that case, 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 offers a new avenue of hope for some defendants who would not have had any realistic chance of dismissing their serious criminal cases. It's a ray of hope that can keep their criminal records clear, providing relief to them and their families.
Through a commitment to intensive mental health treatment, defendants can earn a complete dismissal of even serious felony charges. This is not just a legal process, but a chance for a fresh start, offering optimism and motivation to the defendants.
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. You are not alone in this process, and we are here to support you.
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