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Mental Health Diversion Program for Criminal Cases – California Penal Code Section 1001.36

Posted by Alan Eisner | Aug 01, 2019

Mental Health Diversion Program for Criminal Cases – California Penal Code 1001.36 PC
California allows pretrial diversion if you committed a crime due to a mental disorder and you can get treatment rather than prosecution.

Some defendants who have been charged with a crime suffer from a mental health issue that impact their ability to know right from wrong or it impacts their ability to control their actions. 

The California criminal justice system is often overwhelmed in attempting to deal with defendants suffering from a mental illness.

Los Angeles criminal courts have to find a balance between holding people accountable for their criminal behavior while recognizing that it may be possible a mental health issue might make them less culpable for their actions.

In response, the state of California decided to allow pretrial diversion if you committed a crime due to a mental disorder that allows you to receive treatment rather than prosecution. In July 2018, the Governor signed Assembly Bill 1810 that grants discretionary diversion to people who meet a specific criterial.

The new law is called “Mental Health Diversion” and it's described in California Penal Code Section 1001.36. Critics of the new law claim it creates a dangerous change to public safety as it permits pretrial diversion to all levels of criminal offenders without sufficient restrictions.

In basic terms, under PC 1001.36, if you have been charged with a crime, you might be given the opportunity to go through a mental health treatment program. 

If you successfully complete it, your criminal charges will be dismissed. Clearly, the Mental Health Diversion occurs before you go to trial, meaning it's a form of “Pre-Trial Diversion.”

Our California criminal defense attorneys can make a request with the judge to permit you to go through the program before making a decision on sentencing.

Obviously, the main benefit of California Penal Code Section 1001.36 Mental Health Diversion is that your criminal charges will be dismissed if you successfully get through it. In addition, your record of the arrest will be sealed and destroyed.

Let's take a closer look at the program below.

Who is Eligible for California Mental Health Diversion?

Under California Penal Code 1001.36 Mental Health Diversion, defendants who have been charged with a misdemeanor or felony offense can be eligible. However, a judge will normally only allow you to enter the program if the following conditions are satisfied:

  • You suffer from a mental condition other than a personality disorder like pedophilia.
  • Your mental disorder was a significant factor for why you committed the crime
  • A qualified mental health professional forms an opinion that you would respond to treatment.
  • You agree to participate in Mental Health Diversion and waive you right to a speedy trial.
  • You agree to comply with the terms of your mental health treatment as a condition of diversion.
  • The court believes you are not an unreasonably high risk or a danger to the community.

It's important to review below the most important conditions below in order to determine if you could qualify for the California Penal Code 1001.36 Mental Health Diversion Program. 

Suffering from a Mental Condition

In order to qualify for Penal Code 1001.36 Mental Health Diversion, you have to have a psychological condition that is actually listed a Mental Disorders Manual. 

Most mental health conditions will qualify, including schizophrenia, bipolar disorder, and Post-traumatic stress disorder (PTSD), but excludes conditions such as Antisocial Personality Disorder and Pedophilia.

It's important to note that you will be required to show evidence by producing a recent diagnosis by a qualified mental health professional.

They will typically rely on relevant information such as their own examination, medical records, and a close review of your prior arrest record. After their review, they will submit a report to the court and might even be asked to testify.

It should also be noted that you must make an agreement to comply with mental health treatment as a condition of the diversion program.

You must also waive your rights to a speedy trial that is guaranteed under the Sixth Amendment of the United States Constitution. The only exception is if you can't intelligently give your speedy trail rights due to your mental condition.

Mental Condition Was a Significant Factor in the Crime

In order for the judge to permit your participation in diversion, they have to be convinced that your mental condition was a significant contributing factor on why your committed the alleged crime in the first place.

They will listen to oral arguments looking for proof there were symptoms of a mental condition around the exact time of when the alleged crime was committed.

In order to make this important decision, they will normally rely heavily on credible evidence, such as reports submitted by police, statements or testimony from witnesses, transcripts from the preliminary hearing, statements and reports from the mental health professional, medical records, and reports from your healthcare provider.

It should be noted that in order the judge to grant you a Penal Code 1001.36 Mental Health Diversion, a mental health professional must inform them that they reasonably believe mental health treatment would be helpful. They must tell the judge that your symptoms causing your unlawful conduct would actually respond to treatment.

Finally, the judge must believe you are not a reasonable risk of danger to the public.

To determine this, they will consider the opinions from the prosecutor, your criminal defense attorney, and mental health professional. They will also review your prior criminal history and the severity of your current alleged crime.

Mental Health Diversion Treatment Program

The length of a California Penal Code 1001.36 Mental Health Diversion program normally last not longer than two years. The program will include inpatient care or outpatient care, or both.  Before a judge will grant a treatment program, they will consider oral arguments from your lawyer and the prosecutor.

They will also consider your specific needs and the best interest of the public.

It should be note the cost of the mental health diversion can come from public or private funds. If you are unable to afford private treatment, the court could refer you to a county mental health agency or another court. However, the county mental health agency has to make an agreement to accept the responsibility of providing treatment and they have to have sufficient resources to operate the program for which you are eligible.

The mental health provider of your diversion treatment will provide the court with periodic reports on progress. 

These reports will also be provided to your lawyer and the prosecutor. Based on the information in the reports, the judge could decide to schedule a hearing to determine if they need to modify the treatment plan, whether normal criminal prosecution should proceed, or if you should be referred to a county investigator to determine whether you need a conservator. 

The various types of circumstances that typically lead to a hearing include:

  • (1) You have been charged with a new crime that shows you may be violent, such as a domestic violence incident;
  • (2) You were charged with a new felony crime;
  • (3) You participated in any criminal behavior that makes you unsuitable for the diversion program;
  • (4) A qualified mental health professional informs the court your performance in the program is unsatisfactory or you are highly mentally disabled.

If you successfully complete the treatment program under California Penal Code 1001.36, the court will dismiss your original criminal charges and the arrest will be sealed. You will be considered successful if you significantly completed the requirements of the diversion program, avoided any new crimes not related to your disability, and you have created a long-term plan for psychological care.

If your diversion was not successfully completed, the court will reinstate the criminal prosecution process and you will face the initial criminal charges.

Accused of a Crime in California? We Can Help You

If you have been accused of a crime anywhere in Los Angeles or Southern California, our criminal defense lawyers can review your charges, potential penalties and defenses, and whether you may be eligible for California Penal Code 1001.36 Mental Health Diversion Program. You will need our legal professional to make an argument to the judge.

This process starts with a phone call to our office so we can closely review the details of your situation and determine if you are eligible for the diversion program.  

Contact us at 877-781-1570. Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776

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About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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