Mental Health Diversion


Unfortunately, some defendants facing criminal charges suffer from mental health issues. In that case, the State of California has issued a Mental Health Diversion program that offers treatment and rehabilitation of these defendants instead of the traditional penalties and sentencing that result from their charges. There are quite a couple of things that one has to learn about this program. We at the Law Offices of Jeff Voll are ready to offer assistance to clients who are seeking mental health diversion for their loved ones.

Definition of Mental Health Diversion

Under California Penal Code 10001.36, a mental health diversion is a form of pretrial diversion that offers mental health treatment to defendants who are accused of a crime. The program can be requested at any point in a criminal case and allows the defendant to postpone any further actions in his or her case, to participate in the treatment program.

The California Mental Health Program typically takes a maximum of two years to complete. During this period, the defendant will receive in-patient care, outpatient care, or both. The judge will decide on the kind of treatment that you will get based on the arguments provided by your criminal defense attorney. This includes your specific needs and the type of treatment that is suitable for your mental disorder based on public interest.

Eligibility for Mental Health Diversion in California

This program is suitable for both misdemeanor and felony defendants. However, the court can only approve the program if the following requirements are met:

The Defendant has Been Suffering from Mental Health Condition

An eligible candidate for the mental health diversion program must meet the recent edition of mental disorders. The list includes disorders such as:

  • Post Traumatic Stress Disorder(PTSD)
  • Bipolar disorder
  • Schizoaffective disorder
  • Schizophrenia

However, some types of disorders are ineligible for the program. These disorders include:

  • Borderline personality disorder
  • Antisocial personality disorder
  • Pedophilia

The defendant must prove that he or she is mentally disordered by presenting a valid and recent diagnosis from a professional health expert. The defendant can also rely on the arrest report, medical records, and examination results to prove eligibility for the program.

The Disorder Has a Significant Role in the Alleged Crime

The defendant should also prove that the disorder played a significant role in influencing the alleged crime if not directly related to criminal activity. Therefore, the judge must conclude that the defendant showed the symptoms of the crime during the alleged offense. There are a couple of credible pieces of evidence used to determine this aspect. This includes:

  • Witness statement
  • Preliminary hearing transcripts
  • Medical records
  • Medical reports from a qualified mental health expert
  • A statement provided by the defendant's mental health doctor.

There are High Chances that the Defendant Will Respond to the Treatment

For the court to guarantee the opportunity for the program, a mental health expert must reasonably believe that the treatment would help the defendant. Explicitly, the doctor must give a reasonable opinion that shows that the symptoms that motivated the defendant to commit criminal behavior would be influenced positively by the treatment program.

The Defendant Dismissed the Right to Speedy Trial

Criminal defendants have the right to file for a speedy trial as provided under the United States Sixth Amendment. However, if you seek this program, it would be hard to comply with this requirement, hence the need to waive your right to a speedy trial.

The only case that is an exception is a situation where the defendant cannot waive his or her commitment to a speedy trial due to a severe mental state. In such a case, the court will waive the right and order a diversion if the defendant satisfies the candidacy for a diversion program.

The Defendant Submits to the Therapy

The court will only submit to the petition for a mental health diversion as long as the defendant agrees to participate in the program willingly. Otherwise, they might deny the opportunity if one is not willing to participate in the diversion.

The Defendant Does Not Pose Any Significant Risks of Danger to the Public

The judge must be entirely satisfied that the defendant does not pose any danger to the public if released to the community. Therefore, the judge will consider various factors such as:

  • The district attorney's opinion
  • The defendant's attorney's opinion
  • The view of a professional mental health expert
  • The severity of the charges at hand
  • The criminal and violence history of the defendant

The court will go further into determining the possibility of a risk to public safety as provided under Penal Code 1170.18(c). In this case, the court will seek the possibility of a specific future crime based on the following offenses:

  • A violent sexual offense
  • Oral copulation, sodomy, or sexual penetration with a person who is under fourteen or is more than ten years younger than the defendant
  • A crime that involves lewd or lascivious acts with a child under fourteen years
  • Homicide offense
  • Involvement in a murder crime
  • Assault on a peace officer
  • Possession of a weapon with the potential of mass destruction
  • Any other offenses that are punishable by life imprisonment or a death sentence.

Benefits of Mental Health Diversion in California

There are a couple of benefits that come along with the participation in a mental health diversion program. These benefits are described below.

Dismissal of Your Criminal Records

If the defendant completes the diversion program, the charges that one should face are dismissed ultimately. This means that your arrest and criminal records will appear that they never happen. Successful sealing of the arrest records indicates that the participant's sealed record might be used in the following ways:

  • The defendant should disclose the arrest when applying for a peace officer. The California Department of Justice can also disclose your arrest concerning the application
  • Agencies related to criminal justice can also access your sealed arrest records during the ordinary course of their obligation
  • The court might use the sealed records to determine your eligibility for a mental health diversion program in future crimes
  • The records might also be considered when determining the need to provide continued treatment and care to the defendant

Dismissal of Immigration Consequences

The fact that you have sealed your criminal record does not exempt you from any immigration consequences. However, participating in a health diversion program might help you evade immigration consequences as long as:

  • You do not plead guilty to a deportable offense or a crime that is considered as inadmissible and
  • You do not admit to any factors that can be used to prove the elements of an offense that has potential immigration consequences

Treatment of Your Mental Condition

Going through the mental health diversion program would be a reasonable decision for anyone who's suffering from mental health disorders. Therefore, you should strive for the successful completion of the program if your loved one is eligible for the program.

Factors that can Trigger a Hearing during Mental Health Diversion

Once a defendant has been granted the opportunity to participate in a mental health diversion program, the organization responsible for running the program should give reports about the program. Depending on the report, the court might decide to trigger a hearing to modify your treatment plans, have your participation unfrozen, or have your criminal prosecution restarted. There are a couple of factors that can trigger such a possibility. These factors are as follows:

  • A conviction with a new minor crime that shows the possibility of violence
  • A conviction with a new felony
  • Participation in a criminal act that makes you unsuitable for the diversion program
  • Advice from a professional mental health expert that your performance in the program is not satisfactory, or you are gravely disabled.

Proceedings After Completing the Program

As stated earlier, once the defendant has completed the diversion program, the court will go on to dismiss your criminal charges. This will be guaranteed as long as the following factors are satisfied:

  • You have complied substantially with the conditions of the diversion
  • You have avoided any new violations that are related to your mental health condition
  • You have considered attending a long-term mental health care

Developments in California's Mental Health Diversion

The California legislature sought an amendment to the mental law in summer 2018. The amendment, known as the Senate Bill 215, is considered as the Penal Code 1001.82, and differs with PC 1001.36 in the following ways:

  • Permitting health diversion for misdemeanor and felonies that are only punishable with a county jail sentence
  • Unavailability of the diversion program for specific felonies unless the prosecutor consents. These felonies include child pornography, manslaughter, gun crimes, DUI that caused injuries, and VC 10851, joyriding.

Find Help for Mental Health Diversion Near Me

There are quite a lot of factors to consider while applying for mental health diversion in California. Such factors cannot be handled unless one decides to rely on a professional criminal defense attorney. You should seek an attorney who has established a reputation in offering credible services. We at the Law Offices of Jeff Voll are the best option when it comes to petitioning for admission in the California mental health diversion program. If you are living in Los Angeles, CA, contact us today at 323-467-6400 to make an appointment with us.

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