A large proportion of people who are arrested have mental health concerns. The good news is that the vast majority of California criminal charges are eligible for mental health diversion under Penal Code section 1001.36. Mental Health diversion allows the defendant to compete mental health treatment rather than criminal punishment. If the defendant successfully completes the prescribed mental health treatment, the court dismisses the California criminal case. We work with a team of experts to evaluate clients and propose treatment plans that lead to dismissal of California criminal charges.
What Kinds of Charges are Eligible for Mental Health Diversion in California Criminal Cases?
Most California criminal charges are eligible for mental health diversion. There are a few exceptions. Ineligible charges are mostly sex crimes and DUI charges. Charges a that are not eligible for mental health diversion include:
(1) Murder or voluntary manslaughter.
(2) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3) Rape.
(4) Lewd or lascivious act on a child under 14 years of age.
(5) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(6) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(7) Continuous sexual abuse of a child, in violation of Section 288.5.
(8) A violation of subdivision (b) or (c) of Section 11418. (Weapons of Mass Destruction)
(9) Driving Under the Influence charges, such as Vehicle Code sections 23152 and 23153.
Who Qualifies for Mental Health Diversion in California Criminal Cases?
The requirements to qualify for mental health diversion in a California criminal case are pretty straightforward. There are two eligibility requirements and four suitability requirements.
Eligibility Factors
The court must first find that the defendant is eligible for mental health diversion, using two factors:
(1) A mental health professional must diagnose the defendant with a mental disorder as defined in the DSM.
(2) The diagnosed mental disorder must have been a significant factor in the commission of the charged offense. Since 2023, a change in the law now requires the court to find that the diagnosed mental disorder was a significant factor in the charged offense, unless there is clear and convincing evidence to the contrary.
Suitability Factors
Next, the court must find that the defendant is suitable for mental health diversion, using four factors:
(1) The symptoms of the diagnosed mental disorder will respond to treatment.
(2) The defendant consents to diversion and waives the right to a speedy trial.
(3) The defendant agrees to comply with treatment as a condition of diversion.
(4) The defendant will not pose an unreasonable risk to public safety. “Unreasonable risk to public safety” means that the defendant is likely to commit a super strike – a really bad crime.
What Happens When Mental Health Diversion is Granted in a California Criminal Case?
When a judge grants mental health diversion in a California criminal case, the court agrees to allow the defendant to participate in mental health treatment, rather than face criminal penalties. The diversion can be granted for up to two years. During that two year period of mental health diversion, the defendant participates in mental health counseling, medication management, substance abuse treatment, and any other terms that the court find appropriate. After the diversion term (or sometimes sooner!), the court dismisses the criminal case. Case dismissed! No conviction, no long term criminal consequences.
Other Types of Diversion
For our article about other types of diversion, including judicial diversion, military/veterans diversion, and drug diversion, click here.
How a Lawyer Can Help
We work with a team of mental health experts who regularly write reports for use in court. They write reports that meet each of the legal factors. Our experts make the diagnosis, explain how the diagnosis relates to the charged conduct, and layout a treatment plan supported by scientific research. We then draft a mental health diversion motion, explaining the relevant law and how our expert’s report meets the requirements. We then attend the court hearing and argue the case to the court. In many cases, judges grant our diversion motions over the prosecutor’s objection. We then attend progress report hearings throughout the term of diversion (often 2 years), to keep the judge updated on the defendant’s progress in mental health treatment. At the end, we’re there to make sure the case gets dismissed and sealed.
This is a complicated process, with many possible pitfalls along the way. We’ve handled many of these cases, so we know how to be successful. If you are facing a California criminal case, and you think that a mental health diversion might be appropriate, please reach out today at 323-529-3660.
