Under Penal Code Section 1001.36, a court may grant pretrial diversion in a misdemeanor or felony case if all of the following criteria are met:
- The defendant suffers from a mental health disorder. A mental health disorder may include bipolar disorder, schizophrenia, schizoaffective disorder or post-traumatic stress disorder. Mental health disorders which do not qualify a defendant for mental health diversion include antisocial personality disorder, borderline personality disorder and pedophilia. Evidence of a mental health disorder is provided by the defense and must include a recent diagnosis by a qualified mental health expert. In determining that the defendant suffers from a qualifying disorder, the mental health expert may rely upon an examination of the defendant, the defendant’s medical records, or any other relevant evidence.
- The defendant’s mental disorder was a significant factor in the commission of the charged offense. “A court may conclude that 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.” (Pen. Code § 1001.36)
- The defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment in the opinion of a qualified mental health expert.
- The defendant consents to diversion and waives his or her right to a speedy trial.
- The defendant agrees to comply with treatment as a condition of diversion.
- The defendant will not pose an unreasonable risk of danger to public safety 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 factor that the court deems appropriate.
There are certain offenses, such as murder, voluntary manslaughter and various sex offenses which would render a defendant ineligible for mental health diversion.
If pre-trial diversion is granted, then the prosecution is temporarily or permanently postponed to allow the defendant to undergo mental health treatment. If the defendant performs satisfactorily in diversion by complying with the program and not being charged with additional criminal offenses, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion and the record of arrest shall be deemed to have never occurred.
Because the criminal justice system and issues of mental health are often inextricably intertwined, mental health diversion is an important avenue to be aware of.