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Mental Health Diversion

What is Mental Health Diversion?

California implemented AB1810 on June 27, 2018, codified in 10001.35 and 1001.36, creating an opportunity for the court to Divert any crime, misdemeanor or felony, to allow a defendant to undergo mental health treatement.

Who is Eligible for Mental Health Diversion?

Diversion is a discretionary option for the court, meaning that cannot be guaranteed or denied to particular person, but the statute lays out guideline considerations for the court.  It is the defendant's burden to establish eligibility under the statute.

The court may, but is not required to, grant diversion if all the following are met:

  • “The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders [currently the DSM V], including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.” (§1001.36(b)(1) PC)
    • The defense is directed to provide evidence of the disorder, which must include a diagnosis by a “qualified mental health expert.”
    • The statue requires a “recent diagnosis” of the disorder. Depending on the defendant's circumstances, the diagnosis could come from a psychiatrist or psychologist in a full report ordered by the court, or it could come from recent medical records regarding the defendant's mental health treatment.
  • The court must be satisfied that the defendants mental disorder played a “significant role” in the charged offense” (§1001.26(b)(2)
    • The court can consider any relevant evidence, statements, reports and treatment provider information to establish this.
  • “In the opinion of a qualified mental health expert, the defendant's symptoms motivating the criminal behavior would respond to mental health treatment.” ( 1001.36, subd. (b)(3).)
  • The defendant consents to diversion and waives the right to a speedy trial. ( 1001.36, subd. (b)(4))
  • “The defendant agrees to comply with treatment as a condition of diversion.” ( 1001.36, subd. (b)(5).)
  • “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.” ( 1001.36, subd. (b)(6).)
  • “The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” ( 1001.36, subd. (c)(1)(A).)
    • Generally, its most effective to present a proposed program to the court which directly addresses the cause of the offense and offers structure in how to prevent a subsequent violation.

WHAT PROGRAMS QUALIFY FOR MENTAL HEALTH TREATMENT?

Programs must meet the following criteria:

  • “The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (c)(1)(A).) 
    • The program may be county-run, or privately secured by the Defendant.
  • The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. ( 1001.36, subd. (c)(1)(B).)
  • The program must submit regular reports to the court and counsel regarding the defendant's progress in treatment. ( 1001.36, subd. (c)(2).)
  • The diversion program is to last no longer than two years. ( 1001.36, subd. (c)(3).)  Misdemeanor diversion can be no longer than one year (1370.01©(1).

CAN ORDERED TREATMENT BE TERMINATED OR MODIFIED?

The court can order a hearing to determine if the program should be terminated, modified or reinstated, upon notice to both parties.  If the defendant commits a new crime, or fails to participate as ordered,  or becomes gravely disabled, the court can terminate the diversion process and reinstate criminal proceedings.

WHAT HAPPENS UPON SUCCESSFUL COMPLETION OF DIVERSION?

Dismissal of criminal charges

“If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.”  (§ 1001.36, subd. (e).) Whether the defendant has performed “satisfactorily” on diversion is a matter left to the discretion of the court.  However, the court may conclude the defendant has performed satisfactorily if:

  • The defendant has “substantially complied” with the program requirements.
  • The defendant has “avoided significant new violations of law unrelated to the defendant's mental health condition.” (Emphasis added.)  The statute gives the court authority to ignore new law violations that are related to the defendant's mental disorder.  The court is not required to do so.
  • The defendant has “a plan in place for long-term mental health care.”

IF THE CHARGES ARE DISMISSED, DO I STILL HAVE A CONVICTION AFTER DIVERSION?

“Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred . . . . The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).”  (§ 1001.36, subd. (e).)

Since no guilty plea was required to enter Mental Health Diversion, upon completion, a participant can legally declare they were never prosecuted for the offense.

DO I NEED TO HIRE AN ATTORNEY IF I WANT MENTAL HEALTH DIVERSION?

At the time of writing this page, Mental Health Diversion is a relatively new tool.  Judges and DA's are skeptical about allowing defendants to seek treatment in lieu of punishment, however aggressively presenting information of a client's mental disabilities can be a powerful weapon to fight the system of incarceration that fails to address the deeper-rooted causes of negative behavior.  Most public defenders simply do not have the time and resources to properly obtain and present information necessary to obtain Mental Health Diversion.  If you have a loved one or family member that needs help, and is not being addressed properly in the system, call me, I can help.

Joel Bailey, Bailey Criminal Defense  760 643 4025

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