Mental health diversion was created in 2018 when the Legislature 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 included below. The standard for determining that a defendant is qualified for Mental Health Diversion is that the court need only be “satisfied” that the below criteria are met.
1. Mental Health Disorder
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, 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. Evidence of the defendant’s mental disorder shall be provided by the defense 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 court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. A court 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, including, but not limited to, 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, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense;
If you or someone you know are experiencing a mental health crisis, contact the appropriate crisis hotline:
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 his or her 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 his or her 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 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. 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).
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