Criminal Defense

TREATMENT, NOT PUNISHMENT: CALIFORNIA MENTAL HEALTH DIVERSION (PENAL CODE §1001.36)

By September 21, 2020No Comments

In June 2018, the Legislature enacted California Penal Code §§ 1001.35 and 1001.36, which created pretrial diversion programs for certain defendants with mental health disorders. In practice, the statute allows for certain defendants charged with a misdemeanor or felony the chance for a complete dismissal of their case upon successful completion of a treatment program.

In order to qualify for mental health diversion, qualifying defendants will need to convince the court that:

1).        The defendant suffers a from listed mental disorder which includes, among others, bipolar disorder, schizophrenic disorder, and post-traumatic stress disorder. Other disorders are excluded, such as pedophilia, antisocial disorder, and borderline personality disorder. The defendant must submit a recent diagnosis by a qualified mental health expert prove he or she suffers from a qualifying mental disorder. If the defendant cannot afford a private expert, one of our attorneys will be happy to review finances to determine whether he or she qualifies for an expert at the court’s expense.

It is even possible to qualify for mental health diversion with a diagnosis made after the time of arrest. It is well established that mental health disorders are under-diagnosed in the general public, so the lack of an established diagnosis at the time of arrest does not disqualify someone from mental health diversion.

2).        The mental disorder played a significant role in the commission of the charged offense. This determination is made by a qualified mental health expert.

3).        The disorder and accompanying symptoms would respond positively to mental health treatment. Again, this determination is made by the mental health expert.

4).        The defendant agrees to comply with the recommended treatment and waive their right to a speedy trial. The expert who evaluates the defendant needs to include a recommendation for treatment. This can consist of an inpatient or outpatient program, or a combination of both. The only limitation is on the length of the treatment which can never exceed two years.

5).        The court must be satisfied that the defendant will not pose an unreasonable risk of danger to public safety. In making this determination, the court considers any relevant factors, including the severity of the charges, the criminal history of the defendant, the position of the prosecution, and the opinion of the mental health expert.

If the court grants mental health diversion, the defendant only needs to comply with treatment and not commit any new offenses.  Upon successful completion of the treatment program, all pending criminal charges are dismissed resulting in a clean criminal record.

If you believe mental health diversion is right for you or someone you know, it is essential you speak with an experienced criminal defense attorney before the case proceeds. While judges make the final call, prosecutors often oppose requests for mental health diversion. It is thus important you have an attorney who will help you pick the right mental health expert, put the evidence together for you, and help you navigate all the ins and outs of the mental health diversion process. Call Wegman & Levin today at (818) 980-4000 to learn more and schedule a free consultation.

Liv Donnadieu, Esq.

Liv Donnadieu, Esq.

Liv works at Wegman & Levin as a full-time criminal defense lawyer. She has conducted numerous hearings, researched and argued complex legal issues, and co-chaired an eight-week trial. Liv remains committed to criminal justice reforms, strongly advocates for the mentally ill, and strives to achieve justice for all people. Read More