With Governor Brown's signature, Assembly Bill 1810, a budget trailer bill enacted by the Legislature, is now in immediate effect. This program, known as “mental health diversion” in California, has been set in motion, creating Penal Code section 1001.36, among other things.
This sets forth a discretionary pre-trial diversion procedure for any defendant charged with a misdemeanor or felony (without any charge exclusions, prior conviction exclusions, or “status” exclusions), who suffers from a mental disorder listed in the DSM (other than pedophilia, antisocial personality disorder, and borderline personality disorder), the symptoms of which can be abated with treatment, if the mental disorder played a significant part in the commission of the charged offense.
In other words, California Penal Code 1001.36, Mental Health Diversion, allows some people with mental disorders to get treatment when they are charged with a crime.
If they successfully complete their treatment, the criminal charges will be dismissed, and the arrest record will be essentially sealed, offering a fresh start and a sense of hope as if the arrest had never happened.
It should be noted that Penal Code section 1001.36 only permits diversion “pretrial” – if the defendant has been tried and convicted or has pled guilty and been sentenced or granted probation, he or she is not eligible for diversion under this statute. This limitation ensures that diversion is only available to those whom the criminal justice system has not fully processed, and it does not apply to those who have already been convicted or sentenced.
Diversion under this new statute is conditioned on the defendant's waiver of speedy trial rights (unless he or she has been found to be incompetent), the defendant's agreement to undergo treatment as a condition of diversion, and the defendant's agreement to pay restitution, if any, to the crime victim.
Diversion is to last for no longer than two years. During that period, the defendant is to be treated in the community, either in a residential setting or in an outpatient program.
Diversion will not be granted if the court finds that the defendant poses an unreasonable danger to the public, if diverted, as defined in PC 1170.18 (likely to commit a serious strike).
If the defendant is successful on diversion, meaning that he or she has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to his or her mental health condition, and has a plan in place for long-term mental health care. The charges must be dismissed, and the arrest upon which the diversion was based shall be deemed never to have occurred, offering a fresh start with limited specified exceptions and a sense of optimism.
A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant's treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant's eligibility for diversion under this section may not be used in any other proceeding without the defendant's consent, “unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution.”
The statutory language is permissive, meaning that the court has the discretion to grant diversion to an eligible and suitable defendant. This underscores the importance of the defense's compelling case presentation, empowering them to advocate effectively for their clients.
That means the burden of persuading the court to grant diversion to a particular client rests on the defense. The defense is required, by the statute, to provide the court with evidence of the defendant's mental disorder, including “a recent diagnosis by a qualified mental health expert,” based on an examination of the defendant, the defendant's medical records, arrest reports, and any other relevant evidence, as well as the expert's opinion that symptoms of the disorder can be abated through treatment. This process involves the defense presenting a compelling case to the court, which may or may not result in the granting of diversion.
Contact our Los Angeles Criminal Defense Law Firm
If you need additional information about California Assembly Bill 1810 or Penal Code Section 1001.36, call the Los Angeles criminal defense lawyers at Eisner Gorin LLP at 877-781-1570.
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