Penal Code Section 1001.36 - Mental Health Diversion

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Every court in California is now a mental health court due to Mental Health Diversion. Finally, judges now have the discretion to help those suffering from mental illness that get themselves caught up in the criminal justice system.

Mental Health Diversion is codified in Penal Code section 1001.36. This section lays out two significant judicial proceedings: (1) An Eligibility/Suitability Hearing pursuant to PC 1001.36 (b), and (2) a Termination/Modification Hearing pursuant to PC 1001.36 (d).

With respect to the Eligibility/Suitability Hearing, the judge has discretion in determining at this hearing whether the defendant is both eligible and suitable for Mental Health Diversion. For eligibility, the Court will consider 5 criteria:

  1. The defendant suffers from a mental disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. The statute lists some qualifying disorders but this list is not meant to be exhaustive. There are also excluded disorders, which include pedophilia, anti-social personality disorder and borderline personality disorder.
  2. The defendant’s mental disorder played a significant role in the charged offense. Relevant credible evidence of this can come from a variety of sources, including the police report, prelim, medical records and expert reports.
  3. According to a mental health expert, the defendant’s symptoms which caused the criminal behavior would respond to treatment.
  4. The defendant consents to diversion and waives speedy trial rights, unless incompetent under 1368.
  5. The defendant agrees to comply with treatment.

With respect to suitability, there is a 6th criteria. The court is satisfied the defendant will not pose an unreasonable risk of danger to public safety, as defined under section 1170.18, if treated in the community. The Court may once again consider a variety of sources, including the opinion of the D.A., mental health expert opinion, the defense counsel and the defendant’s criminal history.

It is likely the burden of proof regarding these criteria is on the defendant to prove eligibility, but on the prosecutor to prove the defendant is not suitable. This is based on case law under Prop. 36 and Prop. 47.

Once a defendant is determined to be both eligible and suitable for Mental Health Diversion, the analysis then shifts to the parameters of the Mental Health Diversion program itself.

To begin with, Mental Health Diversion applies to any misdemeanor or felony (See PC 1001.36 (a)). However, it would likely be an abuse of discretion by the Court to grant diversion to a defendant either charged with, or having a conviction for, a Super-Strike as defined in PC 1170.18(b). Diversion can be instituted at any point in the judicial process until trial (See PC 1001.36 (c)).

Mental Health Diversion is also an option for defendants who are incompetent to stand trial. PC Section 1370 (a)(1)(B)(iv) states, “If, at any time after the court finds that the defendant is mentally incompetent and before the defendant is transported to a facility . . . the court is provided with any information that the defendant may benefit from diversion . . . the court may make a finding that the defendant is an appropriate candidate for diversion.”

With respect to the treatment program, the Court must be satisfied the recommended inpatient/outpatient program meets the specialized needs of the defendant (See PC 1001.36(c)(1)(A)). Referral may be to an existing in/outpatient mental health resource. The treatment may be procured using private or public funds (See PC 1001.36(c)(1)(B)). Referrals may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and, services are provided only to the extent resources are available and the defendant is eligible for those services (See PC 1001.36(c)(1)(B)). The treatment provider must provide regular reports on the defendant’s progress (See PC 1001.36(c)(2)). Finally, Pretrial diversion cannot be longer than two years (See PC 1001.36(c)(3)).

If a defendant placed into Mental Health Diversion is not doing well in the program, pursuant to Penal Code section 1001.36 (d), a hearing must be conducted to either: (1) Modify the terms of program treatment terms, (2) reinstate criminal proceedings due to defendant’s unsuccessful performance in the program or (3) conserve the defendant on a LPS Conservatorship.

A termination/modification hearing is triggered when the defendant either picks up a new felony or misdemeanor case while in the program, is otherwise engaged in criminal conduct (even without an arrest or conviction), is performing unsatisfactorily in the program or is determined by an expert to be gravely disabled pursuant to W&I 5008(h)(1)(B).

If the defendant successfully completes diversion he/she earns an outright dismissal pursuant to Penal Code section 1001.36(e). Additionally, the arrest is deemed never to have occurred and access to the record of the arrest is restricted pursuant to PC 1001.9.

For the Court to find successful completion, the following findings must be made, (1) The defendant has substantially complied with the requirements of diversion; (2) the defendant has avoided significant new violations of law unrelated to the defendant’s mental condition and (3) the defendant has a plan in place for long-term mental health care.

Lessem, Newstat & Tooson, LLP: Proven Advocates

Lessem, Newstat & Tooson, LLP has earned a reputation for our work in criminal defense and mental health law. If you would like more information about California’s Mental Health Diversion, whether you or a loved one may be eligible, and how our award-winning Southern California lawyers can guide you through the legal journey ahead, please contact us for a free consultation. Our legal team is available 24/7 to help!

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