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Mental Health Diversion
Mental health diversion pursuant to Penal Code Section 1001.36 may lead to the dismissal of a criminal case. If a defendant has an eligible mental health condition then they may be eligible for mental health diversion in a criminal case. If granted mental health diversion then criminal charges are suspended and defendant must comply with conditions related to treatment over a period of one or two years, as specified by the court. If defendant is unable to comply with the conditions of diversion then the criminal charges are reinstated. If defendant successfully completes mental health diversion then the court may dismiss the criminal case.
The court may grant pretrial diversion for a misdemeanor or felony offense if the defendant meets six requirements. Pen. Code § 1001.36(b)(1):
- The court is satisfied that the defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Pen. Code §1001.36(b)(1)(A).
- The court is also “satisfied” that the defendant's mental disorder was a significant factor in the commission of the charged offense. Pen. Code §1001.36(b)(1)(B).
- “A qualified mental health expert opines that the defendant's “symptoms” motivating the criminal behavior would “respond to mental health treatment.” Pen. Code §1001.36(b)(1)(C).
- Subject to certain exceptions, the defendant consents to diversion and waives his or her right to a speedy trial. Pen. Code §1001.36(b)(1)(D).
- The defendant agrees “to comply with treatment as a condition of diversion.” Pen. Code §1001.36(b)(1)(E).
The court is “satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.” Pen. Code §1001.36(b)(1)(F).