Mental Health Diversion

Pre-Trial Mental Health Diversion (PC 1001.36)

Treatment for Defendants with Mental Health Issues

Criminal defendants in the state of California who struggle with mental health issues now have the benefit of pursuing Mental Health Diversion. Thanks to this program, codified in the California Penal Code Section 1001.36, California judges have the discretion to help criminal defendants with mental illness obtain the treatment they need in lieu of traditional penalties and criminal records.

At Lessem, Newstat & Tooson, LLP, our Southern California mental health defense attorneys are passionate about protecting the interests of criminal defendants with mental health issues. Over the years, we have dedicated a large portion of our practice to mental health law, and to organizations like NAMI, in raising support and awareness about the struggles mentally ill individuals face in a criminal justice system that has long been ill-equipped to deal with mental illness, and protecting their rights in a range of cases.

Learn more about California’s Mental Health Diversion Program and how our award-winning attorneys at Lessem, Newstat & Tooson, LLP can help. Call (800) 462-7160 or contact us online for a free and confidential consultation.

Purpose of Mental Health Diversion

The primary goal behind Mental Health Diversion is to provide the defendants with mental health issues the treatment they need rather than subject them to traditional criminal penalties such as incarceration and a criminal record. The program takes into account the long-standing failures of the criminal justice system in helping mentally ill individuals, as well as accepted medical theories and statistics that show the benefit of treatment over standard punishment.

Who Qualifies for Mental Health Diversion?

  • Mental Health Diversion applies to any misdemeanor or felony (although courts are less likely to use their discretion to grant diversion in cases involved the most serious offenses). Some crimes are excluded, such as murder, rape, sexual offenses requiring sex offender registration, etc.
  • The individual must also suffer from a mental health disorder and be diagnosed by a qualified mental health professional.
  • The individual must consent to the diversion and waive their right to a speedy trial.
  • The individual must consent to the treatment as part of the diversion.
  • The court must also determine that the individual will not present an unreasonable risk of danger to others.

Process for Mental Health Diversion

The program can be instituted during any point of the judicial process until trial, and may be an option for defendants who are found mentally incompetent to stand trial.

Any recommended treatment program must meet a defendant’s needs, may be obtained through the use of private or public funds, must provide regular progress reports, and may not persist for longer than two years.

Upon successful completion of Mental Health Diversion defendants will have their charges dismissed and arrest records restricted. A defendant is said to have successfully completed diversion when they have complied with requirements, have not been charged with significant new crimes, and have established long-term plans to care for their mental health.

Learn More About Mental Health Diversion Options for Your Case

California’s Mental Health Diversion program can be immensely beneficial to individuals who struggle with mental health issues, and to the families of these individuals, by allowing them to seek the support and treatment they need without the consequences of traditional penalties and other long-term ramifications that accompany criminal records. While the program exists, it is important to remember that defendants must still prove their eligibility, and argue against any claims raised by prosecutors regarding their suitability when they arise.

You can find more information on our blog about PC 1001.36 and issues related to Mental Health Diversion in California.

Mental Health Diversion Eligibility & Termination / Modification

Under PC 1001.36, there are two important proceedings for addressing criminal matters involving defendants who suffer from mental disorders. These include:

1. Eligibility / Suitability Hearings – Per PC 1001.36 (b) and (2), judges overseeing criminal cases have discretion in determining whether or not defendants are eligible and suitable for Mental Health Diversion. During these hearings, courts focus on 5 important factors for eligibility, including:

  • The defendant has a qualifying mental disorder;
  • The defendant’s mental disorder played a role in the criminal allegations they face;
  • Mental health expert opinions state the defendant’s symptoms responsible for criminal behavior would respond to treatment;
  • The defendant provides their consent to Mental Health Diversion and waives their rights to a speedy trial (unless declared incompetent);
  • The defendant agrees they will comply with diversion treatment requirements.

In addition to these factors, courts will also evaluate an additional factor for determining whether or not a defendant is suitable for Mental Health Diversion. This includes determining whether or not they pose any unreasonable risks to public safety if they are allowed to participate and be treated in the community. To assess this risk, and other factors, courts may consider a range of facts and evidence, including the opinions of mental health experts, prosecutors, and defense counsel, as well as law enforcement reports, criminal history, and more.

2. Termination / Modification Hearings – Hearings over termination or modification of a defendant’s participation in Mental Health Diversion occur when a defendant is charged with a new misdemeanor or felony allegation while in the program, is involved in criminal conduct (even without arrest or conviction), is not performing satisfactorily, or has been determined by an expert to be gravely disabled.

Speak with a member of our team today about California’s Mental Health Diversion and how we can help. Contact us for a free consultation.

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