Cognitive Disability Diversion | Penal Code 1001.20 PC

What is a Cognitive Disability Diversion in California?

A keystone of the right to a fair trial is that the person charged with a crime must have the cognitive ability to understand the charges and the trial process in order to defend themselves.

For many with cognitive or developmental disabilities, this awareness is difficult, if not impossible. In recognition of this, California's legal system demonstrates compassion and understanding by providing an alternative to traditional criminal prosecution for such individuals.

Cognitive Disability Diversion in California

Cognitive disability diversion is a pre-plea diversion program for people charged with a crime who have a documented intellectual disability.

This alternative, known as cognitive disability diversion, enables the individual to undergo an 18-24 month plan of treatment and rehabilitation in lieu of a criminal conviction and jail time.

Simply put, in California, a cognitive disability diversion program, as outlined in Penal Code 1001.20 PC, is designed to assist people with cognitive disabilities who are facing criminal charges in avoiding traditional court proceedings and instead participating in a diversion-related treatment and habilitation program.

The program offers personalized support and services to address the underlying causes of criminal behavior. This individualized approach, tailored to each person's specific needs, demonstrates the system's care and consideration for individuals, instilling a sense of value and importance in the participants.

This program targets those with developmental disabilities, including intellectual disability and autism, who are charged with a misdemeanor or a felony, but excludes certain serious felonies.

Diversion Into a Program

Cognitive disability diversion in California (also known as regional center diversion) is a special legal program designed to help defendants with certain diagnosed cognitive or developmental disabilities. This diversion program is governed by Chapter 2.8 of the California Penal Code, sections 1001.20-1001.34.

Under the program, rather than proceeding with the traditional criminal justice process, eligible individuals are placed under the supervision of a Regional Center of the California Department of Developmental Services (DDS), which prescribes treatment and support programs specifically tailored to their needs, addressing both their disability and behavior related to the alleged offense.

The goal is to address the root causes of the individual's behavior, providing them with the tools and support to avoid future interactions with the criminal justice system.

This goal instills hope and optimism about the system's effectiveness. If completed, the charges against the defendant are dismissed, and the arrest is essentially wiped from their record.

What Does the Law Say?

California Penal Code 1001.20 PC says, (a) "Developmental disability" means a disability as defined in subdivision (a) of Section 4512 of the Welfare and Institutions Code and for which a regional center finds eligibility for services under the Lanterman Developmental Disabilities Services Act.

(b) "Diversion-related treatment and habilitation" means, but is not limited to, specialized services or special adaptations of generic services, directed toward the alleviation of developmental disability or toward social, personal, physical, or economic habilitation or rehabilitation of an individual with a developmental disability, and includes, but is not limited to, diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, physical, occupational, and speech therapy, training, education, sheltered employment, mental health services, recreation, counseling of the individual with this disability and of the individual's family, protective and other social and sociolegal services, information and referral services, follow-along services, and transportation services necessary to ensure delivery of services to persons with developmental disabilities.

(c) "Regional center" means a regional center for the developmentally disabled established under the Lanterman Developmental Disabilities Services Act that is organized as a private nonprofit community agency to plan, purchase, and coordinate the delivery of services that cannot be provided by state agencies to developmentally disabled persons residing in a particular geographic catchment area, and that is licensed and funded by the State Department of Developmental Services.

(d) "Director of a regional center" means the executive director of a regional center for the developmentally disabled individual or their designee.

(e) "Agency" means the prosecutor, the probation department, and the regional center involved in a particular defendant's case.

(f) "Dual agency diversion" means a treatment and habilitation program developed with court approval by the regional center, administered jointly by the regional center and by the probation department, that is individually tailored to the needs of the defendant as derived from the defendant's program plan pursuant to Section 4646 of the Welfare and Institutions Code, and that includes, but is not limited to, treatment specifically addressed to the criminal offense charged, for a specified period as prescribed in Section 1001.28.

(g) “Single agency diversion” means a treatment and habilitation program developed with court approval by the regional center, administered solely by the regional center without involvement by the probation department, that is individually tailored to the needs of the defendant as derived from the defendant's program plan pursuant to Section 4646 of the Welfare and Institutions Code, and that includes, but is not limited to, treatment specifically addressed to the criminal offense charged, for a specified period as prescribed in Section 1001.28.

(h) This section is operative January 1, 2021."

What You Should Know

Some important information about the PC 1001.20 cognitive disability diversion program in California includes the following:

The person, due to their intellectual deficit, is unable to proceed to trial and is declared as such under Penal Code 1371 PC.
Rather than facing the traditional criminal justice process, eligible individuals can be diverted into a program that includes evaluation, support, and treatment.
The diversion program is tailored to meet the individual's specific needs, encompassing counseling, job training, educational assistance, and other supportive services.
Regional Centers, which provide services to individuals with developmental disabilities, play a key role in assessing eligibility, developing diversion plans, and monitoring progress.
The court plays a crucial role in the diversion process. The program must be approved for diversion, and the individual must consent to participate. If the individual completes the diversion program, the criminal charges may be dismissed. The court's approval is necessary for the diversion to proceed, and its oversight ensures that the program is being followed and the individual's rights are being protected.
Sometimes, probation departments may also be involved in the diversion program, working jointly with the Regional Center. The probation department's role may include monitoring the individual's progress, providing additional support or resources, and ensuring that the individual is meeting the requirements of the diversion program.
A similar program is mental health diversion under Penal Code 1001.36 PC. This program is designed to provide an alternative to traditional criminal prosecution for individuals with mental health issues, similar to cognitive disability diversion for those with cognitive or developmental disabilities.
It's important to note that a defendant's "disability" is often mistakenly attributed to years of accumulated drug or alcohol abuse when, in reality, they are developmentally impaired even before abusing drugs or alcohol.
Defense lawyers and prosecution sometimes mistakenly resolve a case with a conviction and some form of counseling, such as Narcotics Anonymous (NA), Alcoholics Anonymous (AA), anger management, and sexual compulsiveness counseling. This approach may not be suitable for individuals with cognitive disabilities and could lead to further legal issues.
Once referred to the county's Regional Center, competency restoration services are provided, including personal care, physical therapy, occupational therapy, and speech therapy.
The court will hold periodic progress reviews to monitor the individual's adherence to the Regional Center program. Typically, a representative will come to court with a report concerning the defendant and present it to the judge.

Who Is Eligible?

Eligibility for cognitive disability diversion is determined on a case-by-case basis, but there are specific criteria laid out in the law, including the following:

The defendant must have a diagnosed cognitive disability. Examples include autism, intellectual disabilities (formerly called "mental retardation"), or another related disability qualifying for services under California's Lanterman Developmental Disabilities Services Act.
Evaluation by a Regional Center: A Regional Center must evaluate the defendant and confirm that they meet the criteria for cognitive disability diversion.
Qualifying offenses: Cognitive disability diversion is available for most misdemeanors and some felonies, but certain violent felony offenses (such as murder or serious sex crimes) are not eligible.

How Does the Program Work?

The cognitive disability diversion process involves several key steps:

Court Identification and Consent

Once a case is brought before the court and it is suspected that the defendant may have a cognitive or developmental disability, the court orders an evaluation. This typically happens before a plea is taken. This requires the defendant's consent as well as their agreement to waive the right to a speedy trial. Legal counsel is provided if the defendant does not already have representation.

Evaluation and Reports

Three agencies are ordered to prepare reports concurrently:

The Regional Center evaluates the defendant and determines if they are eligible for cognitive disability diversion. The center also develops an individualized treatment plan that addresses the defendant's specific needs and the nature of the offense.
The Prosecutor assesses the case, including the defendant's criminal history and circumstances of the offense, and provides a recommendation for or against diversion.
The Probation Department examines the defendant's background, motivation for treatment, ties to the community, and capacity to benefit from the program.

Court Review and Decision

Once the reports are submitted, the court reviews them to decide if the defendant is suitable for diversion. If approved, the court orders one of two types of programs:

Dual Agency Diversion - Managed jointly by the regional center and the probation department.
Single Agency Diversion - Overseen solely by the regional center.

Participation in the Diversion Program

The defendant participates in a court-approved diversion plan, which may include services such as counseling, habilitation programs, vocational training, and other relevant programs. Progress is monitored through periodic reports to the court.

Completion of Diversion

If the defendant successfully fulfills the program requirements, the court dismisses the charges, and the arrest is treated as though it never occurred. This clean slate can have a profound impact on an individual's future, particularly in terms of employment and educational opportunities.

Benefits of Cognitive Disability Diversion

This program offers numerous advantages for defendants, their families, and society overall:

Rehabilitation Focus - By addressing the underlying disability and its effects on behavior, the program helps defendants avoid future legal trouble.
Avoid Criminal Record - A successful outcome means the defendant avoids a conviction, which can protect their future opportunities.
Tailored Support - The individualized nature of the program ensures that the defendant receives services tailored to their specific needs and requirements.
Lower Recidivism - By equipping individuals with tools to manage their challenges, the program helps reduce repeat offenses.

For more information, contact our California criminal defense lawyers at Eisner Gorin LLP, located in Los Angeles, CA.

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