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The New Mental Health Diversion Laws: What Is § 1001.36?

By October 10, 2019 No Comments

Mental health diversion is just one type of many diversion programs administered by criminal justice systems in the United States. Mental health diversion involves a way of resolving criminal charges without a guilty plea or trial. In almost every case it requires the accused to assume responsibility for his or her wrongful actions.

Mental Disorder Diversion, provided for in California Penal Code § 1001.36, allows a judge to grant an eligible defendant a period of up to two years to receive mental health treatment. If the defendant performs his or her obligations to the court’s satisfaction, the judge may dismiss the case.  There are strict requirements to be eligible for the program, as well as several exceptions. An experienced California criminal defense attorney may help explain and clarify to whom the program may apply and benefit.

The enactment of AB 1810 implemented California Penal Code sections 1001.35 through 1001.36. AB 1810 created a new statutory scheme for defendants suffering from recognized mental health conditions. It provides courts with discretion to place these criminal defendants into a new type of pretrial diversion program.

California Penal Code § 1001.36 governs the procedure, process, and outcomes associated with the scheme, which was created to promote the following policies (found in California Penal Code § 1001.35):

(a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

(b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.

(c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

Eligibility for pretrial mental health diversion under PC § 1001.36, requires the following:

  • the defendant must suffer from a qualified mental health disorder;
  • the defendant must be able to demonstrate that the qualified mental health disorder played a significant role in the alleged offense;
  • the defendant must be suitable for mental health treatment as determined by the Court that targets the amelioration of the mental health symptoms contributing to the defendant’s criminal behavior;
  • the defendant must be willing to participate in the mental health treatment program determined by the Court and waive the right to a speedy trial to facilitate such treatment; and
  • the defendant must be determined by the Court not to pose an unreasonable risk to public safety if the defendant participates in the Court-determined mental health treatment in the community.

The statutory scheme for the pretrial mental health diversion program provides a mechanism for courts to prevent unnecessary harm to a defendant’s criminal record. Perhaps more importantly, §1001.36 attempts to ensure that defendants suffering from a qualified mental health condition obtain the treatment necessary to avoid the risk of recidivism associated with their mental health condition when untreated.

Anyone with a mental disorder who is charged with a crime may be eligible for Pretrial Diversion under the 2018 California Mental Health Diversion program for criminal cases. Call us today at (760) 775-3739 or find out more online here.