Mental Health Diversion (Penal Code 1001.36)

What is Penal Code 1001.36 Mental Health Diversion?

California allows for some defendants to obtain mental health diversion in lieu of more traditional punishments and penalties.  The process is called Mental Health Diversion.  And it is codified in the California law books as Penal Code 1001.36.  California Penal Code 1001.36 Mental Health Diversion gives a defendant, charged with a crime, an opportunity to go through a program of mental health treatment.  If they finish the program’s terms and conditions, then the charges they faced will be discharged. 

As you can tell, California Penal Code 1001.36 Mental Health Diversion takes place before you go through any sort of trial.  Hence, California Penal Code 1001.36 Mental Health Diversion is considered a form of “Pre-Trial Diversion.”  In essence, California Penal Code 1001.36 Mental Health Diversion gives you the option of freezing the criminal prosecution of your particular case.  Technically, and importantly, your California Criminal Defense Attorney can formally ask the judge to allow you to go through California Penal Code 1001.36 Mental Health Diversion anytime before a sentence is handed down.

The main benefit of California Penal Code 1001.36 Mental Health Diversion, if successfully fulfilled, is that the charges against you will be discharged.  However, another benefit of California Penal Code 1001.36 Mental Health Diversion is that the record of the arrest that led to the charges will be sealed and destroyed.  Hence, for most purposes, you can state that the arrest never occurred.

What are the eligibility qualifications for California Penal Code 1001.36 Mental Health Diversion?

Although many Pre-Trial Diversion programs do not accept defendants charged with a felony crime, California Penal Code 1001.36 Mental Health Diversion is more lenient.  You can qualify for California Penal Code 1001.36 Mental Health Diversion regardless of whether you are charged with a misdemeanor or a felony crime.  Note, though, that a judge will only allow you to enter a California Penal Code 1001.36 Mental Health Diversion program if all of the following terms and conditions are satisfied:

  1. You must suffer from a psychological or mental disability. However, the disability cannot be one of the following mental health conditions: antisocial personality disorder, borderline personality disorder, or pedophilia.
  2. Your psychological or mental disability must have, in some way, been a reason for why the crime you are charged with occurred.
  3. A mental health professional, who is sanctioned and approved by the judge, must formally tell the court, either through an opinion or testimony, that you would be a good candidate for psychological or mental health treatment.
  4. You agree to California Penal Code 1001.36 Mental Health Diversion. This means you have to agree to losing some of your constitutional rights related to trial.  For example, you must agree to losing your right to a speedy trial.  This makes sense because you would be freezing the trial process in order to complete a mental health treatment program instead.
  5. You agree to fulfill the terms of your mental health treatment program as one of your conditions to your California Penal Code 1001.36 Mental Health Diversion program.
  6. Your California Criminal Defense Attorney convinces the judge that you do not present an unreasonably high risk of danger to the community.

Let’s look at each of these qualification requirements in more detail.  This will give you a better sense of whether or not you qualify for California Penal Code 1001.36 Mental Health Diversion.  Also, it will give you a sense of what obstacles might stand in your way for qualifying for California Penal Code 1001.36 Mental Health Diversion.  As California Criminal Defense Attorneys, we believe that you should be as knowledgeable about the charges you face and the potential consequences.  We believe your knowledge helps you help us represent you in the best possible way.

You suffer from a psychological or mental health condition.

To qualify for this requirement under California Penal Code 1001.36 Mental Health Diversion, you must have a psychological or mental health condition listed in a particular mental health manual.  The manual used by California criminal courts is the most recent version of the Diagnostic and Statistical Manual (DSM) of Mental Disorders.  Common examples of mental health conditions that qualify for California Penal Code 1001.36 Mental Health Diversion include, but are not limited to, the following: bipolar disorder, schizophrenia, and PTSD.  Common examples of mental health conditions that do not qualify for California Penal Code 1001.36 Mental Health Diversion include, but are not limited to, the following: Antisocial Personality Disorder, Borderline Personality Disorder, or Pedophilia.

The court will require proof that you have a qualifying mental health disorder before you will be allowed into a California Penal Code 1001.36 Mental Health Diversion program.  Your California Criminal Defense Attorney can use a court-qualified mental health professional to present a diagnosis of a qualifying condition to the judge.  This professional can utilize any of the following types of evidence to determine whether or not you have a qualifying condition: they can examine you, they can review your medical records, and they can analyze your arrest records/history.  Once the mental health professional finishes their review, they will usually write an opinion to the judge.  On occasion, this professional may even testify in court.  However, this is only usually needed for more rare or complicated cases.

Your psychological or mental health condition was a substantial factor in why you committed the criminal behavior.

The judge will listen to arguments from the prosecutor and your California Criminal Defense Attorney regarding this issue.  They must be convinced that the alleged criminal conduct was significantly caused from your psychological condition.  Your California Criminal Defense Attorney will present evidence that you presented symptoms of the conditions during the criminal behavior or around the time of your criminal behavior.  Your California Criminal Defense Attorney can use the following sources of evidence to make this argument: police records, court transcripts, witness statements or testimony, expert testimony (either your own healthcare provider or a court sanctioned professional expert, or medical reports/records.

You are a good candidate for mental health treatment.

In order to qualify for California Penal Code 1001.36 Mental Health Diversion, a court sanctioned/paneled mental health professional must tell the judge they believe psychological or mental health treatment will be helpful.  The professional expert must state that the symptoms that led to the alleged crime would be reduced because of the treatment.

You give up your right to a speedy trial.

The 6th Amendment of the US Constitution gives every criminal defendant the right to a speedy trial.  Since California Penal Code 1001.36 Mental Health Diversion “diverts” your trial by freezing the criminal prosecution process in favor of mental health treatment, it would be impossible to meet this 6th Amendment Constitutional requirement.  Hence, if you want to participate in the California Penal Code 1001.36 Mental Health Diversion program, the defendant must give up their right to a speedy trial.  The only time you will not be required to give up this right is if you cannot knowledgeably and intelligently give up the right to a speedy trial because of your mental condition.  If the court thinks you would be good for California Penal Code 1001.36 Mental Health Diversion, the judge could allow diversion without having to give up the speedy trial right.

You assent to the psychological treatment.

This is a simple requirement.  You cannot participate in the California Penal Code 1001.36 Mental Health Diversion program unless you agree to participate in the mental treatment plan set out for you.

You do not present a big risk to the safety of the local community.

The judge must be convinced that you do not present a danger to the local community if you are given mental health treatment instead of a more traditional punishment such as prison time.  The judge will consider the arguments of the prosecutor and your California Criminal Defense Attorney.  To boost your case, your California Criminal Defense Attorney can also present the testimony of a court-sanctioned psychology professional, your criminal record (they can even explain away any parts of your record that might hurt your case), and the specific facts of the crime you are currently alleged with.

What do I need to know about the California Penal Code 1001.36 Mental Health Diversion treatment program?

A California Penal Code 1001.36 Mental Health Diversion program typically lasts about a year to year and a half.  By law, a California Penal Code 1001.36 Mental Health Diversion program cannot take more than two years.  Your California Penal Code 1001.36 Mental Health Diversion may include inpatient care, outpatient care, or both.  A judge will consider the arguments of your California Criminal Defense Attorney, the arguments of the prosecutor, your specific needs, and the public interests to determine what type of mental health treatment plan you will be required to complete.

It is important to note that you might have to pay for the cost of your California Penal Code 1001.36 Mental Health Diversion program.  If you cannot pay for the program, then the court might direct you to your local mental health departmental agency or another court.  However, in this situation, the local agency must take the responsibility of providing for and supervising your treatment and they must have enough money/resources to run the program.  Talk to your California Criminal Defense Attorney to find out which programs might be available for you in your particular county.

The organization that runs your California Penal Code 1001.36 Mental Health Diversion will be mandated to give the court periodic reports.  These reports will also be given to the district attorney or city attorney and your California Criminal Defense Attorney.  Based on these reports, the judge might decide that a hearing needs to be held to modify the treatment plan, whether the diversion program should be unfrozen and the normal criminal prosecution process should re-start, or if you should be referred to a local investigator to determine whether or not you need a conservator.  At this hearing, the prosecutor and your California Criminal Defense Attorney will present arguments and the judge will make an ultimate decision on how to proceed.  The types of situations that will probably lead to a hearing includes, but is not limited to, the following: you are charged with another crime (either a misdemeanor that reflects violent tendencies or a felony), you participate in criminal behavior that suggests you are not qualified for California Penal Code 1001.36 Mental Health Diversion, or the court sanctioned/paneled professional expert states that you are not meeting the terms and conditions of your treatment program or that you are highly incapacitated. 

If you complete all the terms and conditions of your California Penal Code 1001.36 Mental Health Diversion program, then the court will discharge all the charges you originally faced.  You are deemed to have completed the California Penal Code 1001.36 Mental Health Diversion if all of the following occurred: you significantly finished the requirements of the diversion program, you did not commit any new crimes that would be not related to your disability, and you create a long term plan for psychological care.  If the California Penal Code 1001.36 Mental Health Diversion program was not finished, then the court will unfreeze the criminal prosecution process and you will face criminal charges as before.  From there, you will have to go through the typical criminal prosecution process for the charges that you faced.

California Penal Code 1001.36 Mental Health Diversion and Sealing Your Criminal Arrest History

If the California Penal Code 1001.36 Mental Health Diversion program is properly finished, then the arrest related to the original charges will be sealed and destroyed.  Hence, in most situations, you could legally say that the arrest never occurred.  Thus, the arrest cannot legally be used against you to not hire you, give you a professional license, etc.  However, if you are applying to be a police officer you must still reveal the arrest.  Furthermore, some law enforcement agencies may still have access to the arrest to complete their normal course of duties. The arrest records can be used in a future hearing to determine if you are eligible for California Penal Code 1001.36 Mental Health Diversion if you are arrested for another qualifying crime.  And they could be utilized to figure out how to provide medical and mental treatment as part of a long-term treatment plan.

Also, an immigration court can still use a sealed arrest record to make a determination.  However, there are no immigration consequences from California Penal Code 1001.36 Mental Health Diversion so long as the following occurs:

  • You do not plead guilty to a deportable crime.
  • You do not admit to anything that would support an element in a deportable offense.

If you are not a citizen of the United States, make sure to discuss with your California Criminal Defense Attorney before agreeing to California Penal Code 1001.36 Mental Health Diversion.  It is important that non-citizens not plead guility to any crime before fully understanding and contemplating the immigration consequences of such a plea.

How does California Penal Code 1001.36 Mental Health Diversion differ from SB 215?

In late 2018, Governor Jerry Brown approved the legislature bill SB 215.  This bill creates a new law under California Penal Code 1001.82.  Under this law, mental health diversion would remain the same in many ways, but differ in some important ways:

  • You would only qualify for mental health diversion for misdemeanor or felony charges that could be punished by a sentence to county jail. Hence, if faced with a charge that could potentially lead to state prison time, then you would not qualify for mental health diversion.
  • The new law expanded the type of felonies that do not qualify for mental health diversion. However, if the prosecutor consents (aka your California Criminal Defense Attorney can convince them), then you could qualify.  Some felonies that may be ineligible for mental health diversion include, but are not limited to, the following: DUIs that result in physical injury, felony drug crimes, felony gun crimes, etc.
  • Your mental health treatment professional will be mandated by the court to provide reports on your growth/progress four times a year (so a report after every three months go by).
  • The judge will determine whether or not you should pay restitution to any victim because of the diverted offense. You might be ordered to pay the victim during the time of your diversion program.  Note, however, that an inability to pay due to homelessness or your psychological condition will not disqualify you from mental health diversion or serve as reason that you were not compliant with the terms and condition of your diversion program.

Talk to a California Criminal Defense Attorney About California Penal Code 1001.36 Mental Health Diversion,

It is important that you speak with an experienced and caring California Criminal Defense Attorney about California Penal Code 1001.36 Mental Health Diversion.  One of our California Criminal Defense Attorneys will be happy to go over your specific charges, the potential punishments, your potential legal defenses, and whether or not California Penal Code 1001.36 Mental Health Diversion is right for you.

When it comes to diversion programs, you need an attorney who can hold your hand through the complicated and nuanced process.  You need someone who will advocate for you every step of the way.  This is because the prosecutor will be making arguments to prevent you from joining a California Penal Code 1001.36 Mental Health Diversion program.  You need a legal expert on your side presenting arguments to the judge.

California Penal Code 1001.36 Mental Health Diversion can be a great program for someone who wants to avoid a conviction, an arrest record, and wants to get the treatment necessary to improve his or her life.  This process starts by hiring a zealous and passionate attorney who wants to see you succeed and get the justice that you deserve.

Feel free to call one our Los Angeles Criminal Defense Attorney today for a free consultation.  Call 424-333-0943.

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