Even though there was a recent decrease in the number of incarcerated prisoners, prisons are still overcrowded. Amongst those incarcerated, people with mental health conditions are also being detained—without care. However, because of California Penal Code § 1001.36, defendants with a mental disorder who have been charged with a misdemeanor or felony are eligible for a pretrial diversion.
This diversion temporarily or permanently postpones the alleged offender’s prosecution to allow the defendant to receive treatment for their mental health condition. A diversion can happen at any time during the judicial process—from the time the defendant is charged to judgment (or adjudication).
Who Qualifies for Mental Health Diversion?
Everyone with a mental illness may not qualify for diversion. To be considered for pretrial diversion by the court, the following criteria need to be met:
- The defendant suffers from a mental illness included in the Diagnostic and Statistical Manual of Mental Disorders (such as bipolar disorder, schizophrenia, PTSD). It is important to note that the following disorders are excluded from consideration: antisocial personality disorder, borderline personality disorder, and pedophilia. To substantiate the claim, the defense will need to submit evidence that includes a recent diagnosis from a qualified medical professional.
- The defendant’s mental illness played a significant role in the commission of the crime. To substantiate this claim, the court can review police reports, preliminary hearing transcripts, statements from witnesses and/or a medical professional, medical records, or other evidence that shows the defendant had symptoms consistent with the relevant mental disorder at or near the time of the crime.
- A mental healthcare professional believes that the defendant’s symptoms would respond to treatment, specifically the symptoms related to the crime.
- The defendant consents to the diversion. In consenting, they would have to waive their right to a speedy trial. If a defendant is not mentally competent, then the court has the discretion to proceed if they believe the defendant would benefit from diversion (see California Penal Code § 1370).
- The defendant agrees to comply with their treatment.
- The court believes that if treated in the community, the defendant wouldn’t pose a threat to public safety. The district attorney, defense, and mental healthcare professional can share their opinion. The court may evaluate their opinions along with the defendant’s criminal history, any history of violence, and their current charges.
To be considered for diversion, the defendant cannot be facing any of the following charges:
- Murder or voluntary manslaughter
- Lewd or lascivious act on a child under age 14
- Assault with the intent to commit rape, sodomy, or oral copulation (See California Pen. Code § 220)
- Rape or sexual penetration in collaboration with another person (see California Pen. Code § 264.1)
- Continuous sexual abuse of a child (see California Pen. Code § 288.5)
- A violation of California Penal Code § 11418 (b) or (c), which involves a person using or directly employing a weapon of mass destruction against someone else and causing great bodily injury, widespread illness, injury, or death
- Any offense that would require those convicted to register as a Sex Offender, excluding instances of indecent exposure
Receiving Treatment Under the Mental Health Diversion Program
The courts need to be satisfied with the treatment that the defendant will receive. Specifically, the mental health treatment is subject to the following:
- The recommended treatment (in- or outpatient) will meet the individual needs of the defendant.
- The mental healthcare providers involved in the treatment will provide the court, prosecution, and defense with regular updates concerning the defendant’s progress.
- The treatment will divert the criminal proceedings for no more than 2 years.
How Is Progress Measured?
As mentioned, the defendant’s progress will be monitored and reported to the court and involved attorneys. If it is believed that the treatment plan needs to be modified, the criminal procedures should proceed, or the defendant may need a conservator, then a hearing will be scheduled.
A hearing may be held if a court-approved mental health expert believes that the defendant is:
- Not responding well to the treatment program
- Gravely disabled
Based on the following conditions, a hearing may be held at any time:
- During the diversion, the defendant is charged with another misdemeanor offense that reflects a violent nature.
- During the diversion, the defendant is charged with a felony offense.
- The defendant engages in criminal conduct that disqualifies them from the diversion.
Who Pays for Treatment?
The treatment can be paid for with private or public funds. If a defendant cannot afford private treatment, the courts may refer them to a county mental health agency, existing collaborative court, or assisted outpatient program. However, the outside entity has to agree to take on the responsibility for the defendant’s treatment.
What Happens When Treatment Is Complete?
If the diversion period was unsuccessful, the court will move forward with criminal proceedings. If the defendant successfully completes the treatment program, the criminal charges can be dropped at the end of the diversion period. A defendant effectively finishes the program when they have:
- Complied with the diversion requirements
- Avoided committing other criminal offenses unrelated to their mental health condition
- A plan in place for long-term mental health care
Contact Our Experienced Attorney
If you or a loved one have a mental illness and have been charged with a crime, you should contact the Law Office of Nabiel C. Ahmed. Our team has helped hundreds of clients receive acquittals or reduced sentences. We are also equipped to help clients who are not fit to stand trial navigate the diversion program.
To schedule your consultation, please contact our office at (510) 907-6600 or via our contact page. We will fight alongside you to receive the care you need.