Pretrial mental health diversion is a legal procedure, whereby a criminal defendant’s criminal charges, which are directly related to, and the result of, a mental disease or disorder, are “diverted” from criminal prosecution when certain conditions and requirements are met.
To “divert” from criminal prosecution in a pretrial mental health diversion program means the defendant’s criminal prosecution is circumvented and stopped, but only if certain conditions and requirements are met. If those conditions and requirements are met, then the defendant’s criminal charges are dismissed (PC 1001.36(h)).
Note: The following article is a brief overview of the highlights California laws and requirements related to pretrial mental health diversion and penal code 1001.36. For brevity, PC 1001.36 is abbreviated, summarized, and/or extrapolated.
Applies to Misdemeanor & Felony Crimes
Mental health diversion may be used to dismiss either misdemeanor or felony charges, so long as those misdemeanor or felony charges are not specially excluded from the mental health diversion statute (See exclusions below), and so long as the court determines that mental health diversion is suitable for the defendant (PC 1001.36(a)).
PC 1001.36 Eligibility
Before the court grants pretrial mental health diversion, the court must be satisfied that the defendant meets the following criteria:
The defendant has been diagnosed with a mental disorder as identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Including, but not limited to bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia (PC 1001.36(b)(1)).
Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence (PC 1001.36(b)(1)).
The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense (PC 1001.36(b)(2)).
Note: A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
Suitability Requirement
For any defendant who satisfies the eligibility requirements in subdivision (See above), the court must also consider whether the defendant is suitable for mental health pretrial diversion. A defendant is suitable for pretrial mental health diversion if all of the following criteria are met:
In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment (PC 1001.36(c)(1)).
The defendant consents to diversion and waives his or her right to a speedy, or the court waives the defendant’s speedy trial because the defendant cannot consent to waive speedy trial rights but is otherwise suitable for mental health diversion (as opposed to commitment to a mental hospital) [PC 1001.36(c)(2) Abbrev.].
The defendant agrees to comply with treatment as a condition of diversion, or the defendant cannot agree to comply with treatment because of his or her mental disease or illness, but the court finds that the defendant would benefit from mental health diversion, as opposed to being committed to a mental health facility (PC 1001.36(c)(3) Abbrev.).
The defendant will not pose an unreasonable risk of danger to public safety… if treated for mental health diversion in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate (PC 1001.36(c)(4)).
Other Requirements: In addition to the above-mentioned conditions and requirements, the court will adhere to the following rules related to pretrial mental health diversion:
The court must be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant (PC 1001.36 (f)(1)(A)(i)).
The provider of the mental health treatment program in which the defendant has been placed must provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment (PC 1001.36(f)(1)(B)).
PC 1001.36 Excluded Offenses
A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
Murder (PC 187), or voluntary manslaughter (PC 192(a))[PC 1001.36(d)(1)].
An offense, conviction of which would require the defendant to register as a sex offender pursuant to PC 290, except for the crime indecent exposure (PC 314), including, but not limited to the misdemeanor and felony crimes related to possession of child pornography (PC 311), annoy or molest a minor (PC 647.6), sexual battery (PC 243.4), sexual penetration crimes (PC 289), oral copulation crimes (PC 287), incest (PC 285), sodomy crimes (PC 286), pimping (PC 266h), pandering (PC 266i), rape (PC 261), gang rape (PC 264.1), lewd and lascivious act on a child under 14 years of age (PC 288(a)), continuous sexual abuse of a child (PC 288.5), human sex trafficking (PC 236.1), sexual assault crimes (PC 220(a)), & More (PC 1001.36(d)(2)-(d)(4) Extrapolated).
Note: The California mental health diversion statute specially allows diversion for indecent exposure charges (PC 314), assuming all other conditions and requirements of PC 1001.36 are met. This is true despite indecent exposure being a crime which requires sex offender registration under PC 290 (PC 1001.36(d)(2)).
Continuing Requirements
At any stage of the mental health diversion proceedings, the court may require the defendant to make a showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant is suitable for diversion (PC 1001.36(e) Abbrev.).
Pretrial Proceeding
“Pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.
Length of Mental Health Diversion
The period during which criminal proceedings against the defendant may be diverted is limited as follows:
If the defendant is charged with a felony, the period shall be no longer than two years (PC 1001.36(f)(1)(C)(i).
If the defendant is charged with a misdemeanor, the period shall be no longer than one year (PC 1001.36(f)(1)(C)(ii)).
Reinstatement of Criminal Proceedings
If the defendant fails to comply with pretrial mental health diversion, then the court must hold a hearing to determine 1) whether criminal proceedings should be reinstated, 2) whether treatment should be modified, or 3) whether mental health diversion should be terminated, and conservatorship proceedings commenced. Failure to comply with mental health diversion occurs under the following circumstances:
The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence (PC 1001.36(g)(1)).
The defendant is charged with an additional felony allegedly committed during the pretrial diversion (PC 1001.36(g)(2)), or
Based on the opinion of a qualified mental health expert whom the court may deem appropriate… the defendant is performing unsatisfactorily in the assigned program, or the defendant is gravely disabled and incapable of continuing with pretrial mental health diversion (PC 1001.36(g)(4)).
Successful Completion of PC 1001.36 Diversion
If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion (PC 1001.36(h))
Note: A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care (PC 1001.36(h)).
For further information about PC 1001.36, Pretrial Mental Health Diversion, CA Law, or California penal code section 1001.36, contact our highly qualified and successful criminal defense attorneys for a free consultation. Our team of award-winning criminal defense trial attorneys have successfully handled hundreds of misdemeanor and felony cases in the Inland Empire, including pretrial diversion cases. Call today!
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