On January 1, 2020, California criminal defendants could apply for mental health diversion under Penal Code 1001.36 PC, a pretrial diversion.

This form of pre-plea diversion does not require a defendant to enter a guilty or no-contest plea before being placed on diversion. 

It could offer immigration or other collateral benefits, but if a defendant fails to comply with the conditions, criminal proceedings are reinstated and could go to a jury trial.

Any defendant who violates post-plea diversion programs will face sentencing after the termination from the diversion. Also, PC 1001.36 is recognized for the wide range of crimes that are eligible for diversion. 

Excluding the most severe crimes, such as Penal Code 261 PC rape, Penal Code 187 PC murder, and other severe sexual-related crimes, almost any defendant could be placed n mental health diversion, even in severe felony cases.

Any court considering a defendant's motion for mental health diversion must consider some crucial factors, such as eligibility which requires the court to be satisfied that the defendant suffers from at least one mental health disorder identified in the Diagnostic and Statistic Manual of Mental Disorders (the “DSM”), but it excludes:

• antisocial personality disorder,
• borderline personality disorder, and
• pedophilia.

The disorder has to be established by a diagnosis of a qualified mental health professional, and the court must be satisfied that the relevant condition was a “significant factor” in the defendant's commission of the charged offense. 

The court can consider whether the defendant displayed symptoms consistent with the qualifying disorder at the time of the crime, along with expert opinions, police reports, and other evidence.  Further, a defendant must establish through an expert opinion that the disorder will respond to mental health treatment.

Determining Whether Defendant is Suitable for Diversion

If a defendant is eligible, it must be found they are suitable for mental health diversion, which requires several procedural findings, such as:

• defendant's acceptance of a treatment plan;
• willingness to waive their speedy trial rights,
• finding that the defendant will not pose an unreasonable risk to public safety if treated in the community.

Given the broad range of eligible crimes and disorders, a prosecutor often objects to allowing mental health diversion due to the potential risks to public safety posed by granting it.

When a defendant is found eligible and suitable, the court has the option to impose Penal Code Section 1001.36 PC diversion for up to two years.  They will also approve a treatment plan and will order frequent progress reports. 

The court also has the discretion to order restitution to any victim in the case. Still, a defendant can't be found violating the diversion terms based on their inability to pay restitution, which frequently occurs in mental health cases.  After completing the diversion, the criminal case can be dismissed.

Real Mental Health Diversion Case Examples

Several case examples from our law firm's practice apply to Section 1001.36.  In the Van Nuys Courthouse, a judge granted mental health diversion to a defendant charged with multiple counts of felony vandalism and resisting arrest.

The defendant was found to have a psychotic break that led him to cause thousands of dollars in property damage to homes and vehicles in the Malibu area. 

He was diagnosed with schizophrenia and other disorders and placed on a county-funded mental health treatment program.  There was litigation over the issue of restitution and civil judgment since it's not covered under the law.

In another case in the Airport Courthouse, a defendant was placed on mental health diversion after a residential burglary charge. She entered a Beverly Hills home and slept in a guest bed.  The defense motion presented evidence that she suffered from a dual-diagnosis disorder, meaning she had both mental health and substance abuse disorders that interacted with each other.

She initially violated diversion after leaving a treatment program but was reinstated and given another chance to receive appropriate treatment in an inpatient environment.

In another case in Riverside County, a defendant was charged with kidnapping someone at gunpoint. They were granted diversion based on evidence that he suffered a psychotic break. 

This case was notable because of the temporary nature of the mental disorder in question.  When diversion was granted, they had already received intensive inpatient treatment followed by outpatient treatment and were no longer psychotic. 

The expert evaluations detailed how tragic family circumstances contributed to an otherwise law-abiding person's bizarre and dangerous conduct in forcing another individual into a car at gunpoint. 

Due to the nature of the charges, the prosecutor objected to diversion claiming public safety concerns. Still, the court could recognize that the defendant had no prior record, and their bizarre conduct indicated a mental health crisis rather than a risk of violence.

Mental health diversion under Penal Code 1001.36 PC can be a powerful tool for pre-plea, pretrial diversion in California criminal cases.  Due to its broad scope and the potential of getting criminal charges dismissed after completion of treatment, defense lawyers should explore eligibility for their clients.

If you need more information, then contact our Los Angles criminal defense law firm at Eisner Gorin LLP by phone or use the contact form.