Pretrial Mental Health Diversion

In California, Penal Code Section 1001.36 authorizes pretrial mental health diversion for defendants with qualifying mental health disorders. As used in the statute, “pretrial diversion” means “‘postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.’”

Below is a general overview of eligibility requirements:

The six mental health diversion threshold eligibility requirements are set forth in section 1001.36, subdivision (b)(1)(A)–(F). First, the court must find defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Id., subd. (b)(1)(A). “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.” Id.

Second, the court must find “the defendant's mental disorder was a significant factor in the commission of the charged offense.” (§ 1001.36, subd. (b)(1)(B).) “A court may conclude that a defendant's mental disorder was a significant factor 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.” Id.

Third, “a qualified mental health expert” must opine that “the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.” § 1001.36, subd. (b)(1)(C).

Fourth, subject to certain exceptions, the defendant must consent to diversion and waive his or her right to a speedy trial. § 1001.36, subd. (b)(1)(D).

Fifth, the defendant must agree to comply with treatment as a condition of diversion. § 1001.36, subd. (b)(1)(E).

Finally, the court must find defendant will not pose an “unreasonable risk of danger to public safety … if treated in the community.” § 1001.36, subd. (b)(1)(F). Section 1170.18, subdivision (c) defines “unreasonable risk of danger to public safety” to mean “an unreasonable risk that the petitioner will commit a new violent felony” within the meaning of section 667, subdivision (e)(2)(C)(iv).

Keep in mind that section 1001.36 precludes the granting of mental health diversion to a defendant charged with certain serious offenses - e.g., murder or offenses which, if convicted, require registration pursuant to section 290. If you have questions about whether or not you may qualify for mental health diversion, contact Davis to schedule a free consultation: Davis@dwhlo.com or (916)761-8049.