Mental Health Diversion in CA

LA Criminal Lawyer Explains Mental Health Diversion

MENTAL HEALTH DIVERSION IN CALIFORNIA

What is the General meaning of Mental Health Diversion?
Mental health diversion recognizes that it is not fair for a person with mental illness to face criminal prosecution and the associated punishments for relatively minor offenses that pose a low risk to the general public. The mental health diversion program is now widely used in California for both adults and adolescents who are mentally ill and charged with such offenses.  Diversion is a process similar to probation, but without a criminal conviction.  A person placed on diversion can avoid having a conviction on their record if they comply with the terms of the diversion; in mental health diversion cases, the most common term of diversion is to cooperate with mental health treatment.  The idea is that giving individuals an incentive to deal with underlying mental health issues will lead more offenders who have mental health problems to be evaluated and treated, rather than punished with jail, fines, or probation.

Is there any Law regarding Mental Health Diversion Program in California?
Diversion of Individuals with Mental Disorders [Penal Code § 1001.35 - 1001.36]

“On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pre-trial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)”

Now, the subdivision (b) talked here above, contains the conditions that have to be met for the a defendant to be eligible for mental health diversion. They are:

• The defendant suffers from a mental health condition other than an antisocial personality disorder, borderline personality disorder, or pedophilia
• The defendant’s mental disorder played a significant role in the commission of the charged offense;
• In the opinion of a qualified mental health expert, the defendant would respond to mental health treatment;
• The defendant consents to diversion and waives his or her right to a speedy trial;
• The defendant agrees to comply with treatment as a condition of diversion; and
• The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety.

Notably, mental health diversion can apply to felony offenses, which is uncommon with other types of diversion, which generally apply only to misdemeanor offenses.  This inclusion of felony offenses demonstrates the legislatures desire to have more people who suffer from mental illness participate in treatment rather than being punished for acts related to an underlying mental health issue.

A defendant who suffers from mental health issues (or suspects that they might) should discuss the possibility of mental health diversion with their attorney.  If appropriate, a motion should be filed with the court, asking that the court place the defendant on mental health diversion.  The motion requires a mental health expert, such as a psychologist or psychiatrist to evaluate the defendant based on the statutory criteria, and write a report indicating that the defendant (1) does suffer from a qualifying mental health issue that (2) was a substantial factor in the commission of the crime charged, and (3) would benefit from mental health treatment.  If the defendant cannot afford an evaluation by a mental health professional, the court will appoint one.

Before a judge grants diversion, the District Attorney's office has an opportunity to object and present their own evidence and have their own mental health expert prepare a report.  Conflicting opinions will be resolved by the judge hearing the mental health diversion motion.  It is important to show the court that each of the statutory requirements are present, and highlight the defendant's willingness to comply with the terms of the diversion.  Often, the biggest obstacle in getting the court to grant mental health diversion, particularly in violent crime cases, will be the requisite showing that the defendant does not pose an unreasonable risk to the community.  Here, it is important to point out the behavior of the defendant when not suffering from untreated mental illness, and rely on expert analysis that treatment will better help the defendant to conform their behavior to the law.

Mental health diversion can be requested at any point in a criminal case prior to a conviction.

If granted, the defendant will be placed on a period of diversion.  Upon successful completion, the charges against the defendant will be dismissed.  In other words, there will be no criminal conviction.  Taking matters one step further, upon successful completion of mental health diversion, even arrest records will be sealed. 


When is mental health diversion not applicable?
While mental health diversion is more broadly applied that many other types of diversion (e.g. allowing diversion in felony cases), there are various conditions too, where this program will not be applicable. A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(A) Murder or voluntary manslaughter.
(B) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(C) Rape.
(D) Lewd or lascivious act on a child under 14 years of age.
(E) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(F) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(G) Continuous sexual abuse of a child, in violation of Section 288.5

If you or a loved one has been charged with a crime and may suffer from a mental health disorder (whether diagnosed or not), contact the Law Offices of Nicholas Loncar today to discuss the possibility of mental health diversion and other defenses.

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Useful LA Criminal Defense Resources:
LA Inmate Locator 
LA Superior Court  
Department of Mental Health (DMH)
LA County Law Library
LA Felony Bail Schedule
LA Misdemeanor Bail Schedule