Understanding California’s Mental Health Diversion Code

What Is a Mental Health Diversion

In California, under California Penal Code Section 1001.36, the courts may grant a pretrial diversion for a misdemeanor or felony offense if the defendant has an eligible mental health condition. When granted, pretrial diversions may result in the temporary or permanent postponement and/or dismissal of criminal charges in exchange for completing the prescribed conditions of the diversion.

In cases of mental health diversions, the conditions prescribed are usually related to the treatment of the defendant’s mental health condition. Typically, these treatment programs or other diversion requirements must be completed in one to two years or as otherwise specified by the court.

If the defendant granted the diversion does not or is unable to comply with the conditions of their diversion, the criminal charges would be reinstated.

Requirements for a Mental Health Diversion

In order to receive a mental health diversion, the person facing criminal charges must meet all eligibility requirements. When making decisions regarding mental health diversions, the judge will consider several factors, including the needs of the defendant, requests from the prosecution or defense, and the best interest of the community.

Eligibility requirements for mental health diversions in California include:

  • The defendant suffers from a disorder identified in the most recent edition of the Diagnostic ad Statistical Manual of Mental Disorders
  • The mental condition represents a significant contributing factor in the commission of the alleged offense
  • A qualified mental health expert attests that the defendant’s symptoms would be helped by treatment
  • The defendant not only consents to the diversion but also waives their right to a speedy trial
  • The defendant agrees to comply with the conditions of the diversion
  • The court determines that the defendant will not “pose an unreasonable risk of danger to public safety”

Not all criminal offenses qualify for mental health diversion, including murder, voluntary manslaughter, and rape. Speak with your attorney to find out if your case is one in which requesting a mental health diversion is possible.

Why You Need a Skilled Attorney

While mental health diversions may allow for the dismissal of criminal charges and help a defendant with a mental health condition get the treatment they need, the court may still be required, if requested, to conduct a hearing regarding restitution to any victims associated with the diverted offense. In these situations, if restitution is necessary, the courts may order it to be paid during the diversion period. That said, a defendant’s inability to pay restitution is not necessarily grounds for denying a diversion, depending on the reason the defendant cannot pay.

Additionally, just because you believe you meet the eligibility requirements for a mental health diversion does not automatically mean that one will be granted. The courts may require the defendant to make a prima facie showing that minimum eligibility requirements are met, and that diversion is appropriate for the case.

For these reasons, it is vitally important that you work with an experienced criminal defense attorney familiar with handling these types of cases. If you believe you qualify for a mental health diversion, you should reach out to one of our attorneys at Bentley Law to discuss how best to proceed with your case.

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