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Mental Health Diversion Program in California

Many people who commit crimes in California suffer from mental health disorders. Fortunately, the state courts understand that these individuals need treatment, rather than punishment.

As of June 27, 2018, California Penal Code 1001.36 allows some individuals with mental disorders to receive treatment through the “mental health diversion program,” which they can enter before the trial process begins. If a defendant successfully completes the program, his/her criminal charges will be dismissed and the record of the arrest will be sealed.

Eligibility for Mental Health Diversion Program

Individuals who are facing misdemeanor or felonies are eligible for mental health diversion. However, those facing murder, voluntary manslaughter, and sex crimes that can lead to sex offender registration are ineligible.

The following are all the conditions that must be met in order to be approved to enter a treatment program:

  • The defendant suffers from post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, or schizoaffective disorder. Those suffering from an antisocial personality disorder, borderline personality disorder, or pedophilia are not eligible.
  • The defendant’s mental disorder contributed to committing a crime.
  • The defendant would respond to treatment, according to a qualified mental health expert’s opinion (based on a medical examination, the defendant’s medical records, and arrest reports).
  • The defendant agrees to diversion and waives his/her Sixth Amendment right to a speedy trial.
  • The defendant consents to treatment.
  • The court believes the defendant will not endanger public safety.

Mental health diversion—which consists of inpatient and outpatient care—lasts up to two years. Payment for this treatment can come from public or private funds.

Requirements from the Judge & Concerns from the District Attorney

Before a defendant enters the program, he/she must be vetted by the judge and the district attorney.

The judge requires the following conditions for entry into the diversion program:

  • The defendant has DSM-V diagnosis and the mental disorder is directly related to the alleged crime.
  • The court has an expert opinion that the defendant’s symptoms can be treated.
  • The court is convicted the defendant will follow the treatment plan—whether inpatient or/and outpatient care—based on markers to measure progress and compliance for medication and therapy).
  • The court determines there is no history of non-compliance.

The following are concerns from the DA that need to be addressed:

  • Was drug addiction/use the primary or only cause of the defendant committing the underlying offense?
  • If the defendant is in the diversion program, will he/she be a danger to the public or himself/herself?
  • Will the defendant follow the treatment plan?
  • Is the defendant charged with an extremely violent or dangerous crime that would result in disqualification from the program?

Triggering Events that Lead to a Court Hearing

The program provider is responsible for sending regular progress reports to the court, the prosecutor, and the defendant's criminal defense attorney. If a triggering event occurs, the court could schedule a hearing to figure out if the treatment should be modified, if the defendant should enter conservatorship proceedings, or if the criminal proceedings should be reinstated.

Common events that trigger a court hearing include:

  • A new violent misdemeanor charge
  • A new felony charge
  • Engaging in criminal conduct
  • A qualified mental health expert says the defendant’s treatment is not satisfactory or is gravely disabled

If you or a loved one has been diagnosed with a mental health disorder and charged with a crime in San Diego, contact the Law Office of George Gedulin today at (858) 281-4605 and request a free consultation to learn about all available legal options.

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