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California's New Diversion Program for Misdemeanors and Felonies

California State Capital Building

Governor Brown signed Assembly Bill 1810, enacted by the Legislature and, as a budget trailer bill, effective and operative immediately. This program is called the “mental health diversion” in California. Among other things, the bill created Penal Code section 1001.36, which 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 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 essesntially sealed and it will be 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. 

 

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, and during that period, the defendant is to be treated in the community, either in a residential setting or in an outpatient program. Read Assembly Bill 1810.

 

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 superstrike). 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, then the charges must be dismissed, and the arrest upon which the diversion was based shall be deemed never to have occurred, with limited specified exceptions.

 

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 may grant diversion to an eligible and suitable defendant, but is not required to do so. That means the burden of persuading the court to grant diversion to a particular client rests on the defense, which 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.

 

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.