If you are charged with a crime in California, you may have the option to avoid jail time and a criminal conviction by participating in mental health treatment. California recently enacted a "Mental Health Diversion" program, which allows individuals with a diagnosable mental illness to complete a mental health treatment program instead of going through the traditional criminal prosecution process, which could lead to jail or probation. Initially enacted in 2018 and revised in 2022, Penal Code section 1001.36, also known as "Mental Health Diversion," aims to address the underlying mental health issues that may have contributed to a criminal offense.
The defendant must meet several conditions to be eligible for mental health diversion. First, they must have a diagnosed mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). This includes bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder (PTSD). However, individuals with antisocial personality disorder, borderline personality disorder, or pedophilia are not eligible.
Second, the court must determine that the mental illness played a significant role in the charged crime. Since 2022, the statute directs the court to find that the defendant's mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence to the contrary.
Third, a qualified mental health expert must believe that the defendant would respond positively to mental health treatment. They must opine that the defendant's symptoms, which motivated the criminal behavior, would improve with appropriate treatment.
Fourth, the defendant must waive their constitutional right to a speedy trial because participating in the diversion program would make it impossible to meet the requirement for a prompt resolution.
Fifth, the defendant must agree to comply with the prescribed treatment plan.
Finally, the court must be satisfied that the defendant will not pose an unreasonable risk of danger to public safety. However, public safety is narrowly defined by the statute as a risk of committing specific serious crimes in California, such as murder, rape, assault with a machine gun on a peace officer, etc.
To participate in the program, the defendant must petition the court, and the court must agree to grant mental diversion. Once granted, the program typically lasts for a maximum of two years or one year for misdemeanors. The treatment can be provided through inpatient or outpatient programs, depending on the specific needs and circumstances of the individual. For example, in El Dorado County, the court typically reviews the progress of mental health diversion participants every month.
If you have been arrested or charged with a crime and would prefer to explore your options regarding treatment and mental health diversion instead of a criminal conviction or jail sentence, please contact me today.