Mental health diversion provides for pretrial resolution of serious felony cases

Beginning January 1, 2020, criminal defendants in California superior courts have been able to apply for mental health diversion under new Penal Code Section 1001.36. This form of pretrial diversion is notable for several reasons. First, it is a form of pre-plea diversion, meaning the defendant does not have to enter a guilty or no contest plea prior to being placed on diversion. This may offer immigration or other collateral benefits, but also means that if a defendant fails to comply with the conditions of diversion and criminal proceedings are reinstated, the defendant still has the option and the right to take his or her case to jury trial. Defendants who violated other post-plea diversion programs would face sentencing immediately upon termination from diversion for noncompliance.

Second, Section 1001.36 is notable for the broad range of offenses which are eligible for diversion. Except for those charged with the most serious criminal offenses -- murder, rape, some other specified sex offenses, etc. -- almost any defendant can be placed on mental health diversion, even in relatively serious felony cases.

A court considering a defendant's motion for imposition of mental health diversion will conduct a two-step analysis. The threshold question of eligibility requires the court to be satisfied that the defendant suffers from at least one mental health disorder identified in the most current version of the Diagnostic and Statistical Manual of Mental Disorders, though notably excluding antisocial personality disorder, borderline personality disorder, and pedophilia. The disorder must be established by a diagnosis of a qualified mental health professional. The court must further be satisfied that the relevant disorder was a "significant factor" in the defendant's commission of the charged offense. The statute provides that the court can consider whether the defendant displayed symptoms consistent with the qualifying disorder at or near the time of the offense, as well as expert opinions, police reports, and other evidence. Finally, the defendant must establish through an expert opinion that the disorder will respond to mental health treatment.

If eligible, a defendant must be found suitable for mental health diversion. This requires several procedural findings, such as the defendant's acceptance of a treatment plan and willingness to waive his or her speedy trial rights, but more importantly a finding that the defendant will not pose an unreasonable risk to public safety if treated in the community.

Given the broad range of eligible offenses and qualifying disorders, it is unsurprising that the government's objection to imposition of mental health diversion almost always focuses on the alleged risk to public safety posed by granting diversion. If the defendant is found eligible and suitable, the court may impose Section 1001.36 diversion for up to two years. The court will approve a treatment plan, into which both parties may have input, and will order frequent progress reports. The court must also order restitution to any victim in the case, though, notably, the defendant cannot be found in violation of the terms of diversion for his or her inability to pay restitution, which is often an issue in mental health cases. A successful defendant will have his or her case dismissed entirely upon completion of diversion.

Several recent case examples from our firm's own practice illustrate the broad applicability of Section 1001.36. In the Van Nuys Courthouse, the court granted mental health diversion to a defendant charged with multiple counts of felony vandalism and resisting arrest after a psychotic break led him to cause tens of thousands of dollars in property damage to homes and vehicles up and down a street in the Malibu area. The defendant was diagnosed with schizophrenia, among other disorders, and was placed on a county-funded mental health treatment program. Though there was subsequent litigation on the novel question of whether a Section 1001.36 restitution order could be enforced as a civil judgment given the silence of the statute on the question, there was no dispute between the parties that the defendant's conduct was motivated by mental health disorders and that treatment was appropriate.

Out of the Airport Courthouse, a defendant was placed on mental health diversion on the charge of residential burglary, where she entered the Beverly Hills home of an attorney late at night and slept in a guest room bed. The defense motion for diversion presented evidence that the defendant suffered from a dual-diagnosis disorder, meaning she suffered from both mental health and substance abuse disorders which interacted and contributed to one another. Despite initially being found in potential violation of diversion after leaving a treatment program, the defendant was reinstated and given the opportunity to receive appropriate treatment in an inpatient environment.

In Riverside County, a defendant charged with kidnapping an acquaintance at gunpoint was granted diversion based on evidence that he suffered a psychotic break. This case is notable not only for the very serious charges which were diverted, but for the temporary nature of the mental disorder in question. By the time diversion was granted, the defendant had already received intensive inpatient treatment followed by outpatient treatment and was no longer psychotic. The defense's expert evaluations detailed how a series of tragic family circumstances contributed to an otherwise law-abiding middle aged man's bizarre and dangerous conduct in forcing another individual into a car at gunpoint. Given the nature of the charges, the government strongly objected to diversion, citing public safety concerns. Thankfully, the court recognized the defendant's complete lack of prior record, the bizarre nature of the conduct itself which indicated a mental health crisis rather than a propensity to violence, and the extensive rehabilitative efforts already undertaken by the defendant.

Mental health diversion under Section 1001.36 is a powerful tool for pre-plea, pretrial diversion in California criminal cases. Given its broad scope and promise of a complete dismissal of charges upon completion of a treatment program, effective defense counsel should explore the eligibility and suitability of his or her client in any case that could plausibly implicate mental health. 