The legislature created mental health diversion in 2018 when it enacted Penal Code 1001.36. The goal of the law is to curtail prosecution against persons suffering from mental health disorders. PC 1001.36 extended diversion opportunities to felony cases provided the defendant meets certain eligibility requirements. 

The law marks a movement towards treatment and stabilization for those suffering from Mental Illness and protects the public from persons being released into society without the proper tools to treat their ongoing, and most often, lifetime illness. 

Criteria for Mental Health Diversion

The six criteria for Mental Health Diversion are below. The judge must be “satisfied” that the defendant meets the following qualifications for mental health diversion.

1. Mental Health Disorder

The defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. This includes, but is not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder. It excludes antisocial personality disorder, borderline personality disorder, and pedophilia. The defense shall provide evidence of the defendant’s mental disorder and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence;

2. Disorder Caused the Offense

The defendant’s mental disorder played a significant role in the commission of the charged offense. A judge may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, the judge concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense. Relevant evidence includes:

• police reports;
• preliminary hearing transcripts;
• witness statements;
• statements by the defendant’s mental health treatment provider;
• medical records;
• records or reports by qualified medical experts; or
• evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

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3. Symptoms are Responsive to Treatment

In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment;

4. Defendant Agrees to Mental Health Diversion

The defendant consents to diversion and waives their right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of their mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial;

5. Defendant Agrees to Diversion Terms

The defendant agrees to comply with treatment as a condition of diversion; and

6. Defendant Does not Pose a Risk

The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

“Unreasonable risk of danger to public safety” means an unreasonable risk that the Defendant will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667. (Penal Code section 1170.18(c).

RBX Law is a California-licensed attorney.