California offers three types of pretrial diversion programs that allow those defendants that are eligible to avoid jail time by completing approved courses related to substance abuse treatment and education. These three types of pretrial diversion programs are as follows:

  1. Low-level misdemeanors diversion, including drug diversion (California Penal Code § 1000), and
  2. Mental health diversion (California Penal Code § 1001.36) and
  3. Military or veterans diversion (California Penal Code § 1001.81)

Mental health diversion is a new recovery program in California that went into effect on June 27, 2018. PC 1001.36 authorizes diversion to help criminal defendants with mental health disorders obtain treatment. Defendants may be required to attend therapy sessions and undergo counseling and other inpatient or outpatient treatment for substance abuse. This diversion program must be approved by the court and may last up to 2 years. Defendants who complete their mental health treatment program may have their charges dismissed and sealed.

For a person accused of a crime in California to participate in mental health diversion, all of the following conditions must be met:

  • The defendant suffers from a mental health condition;
  • The mental health condition is not pedophilia, borderline personality disorder, or antisocial personality disorder;
  • The mental disorder played a significant role in the charged offense;
  • There is testimony from mental health experts who believe that the defendant would respond to treatment;
  • The defendant waives his or her right to a speedy trial;
  • The defendant agrees to obtain treatment as a condition of the diversion program; and
  • The court does not believe the defendant poses an unreasonable risk of danger to public safety.

Of course, the crimes with which a defendant with mental health issues is charged effect whether a defendant qualifies for mental health diversion under PC 1001.36. The following crimes are ineligible for mental health diversion:

  • Murder
  • Voluntary manslaughter
  • Assault with intent to commit rape, sodomy, or oral copulation
  • Any crime that would require the defendant, if convicted, to register as a sex offender, except for indecent exposure
  • Rape
  • Sex in concert with another
  • Lewd acts involving children under 14
  • Continuous sexual abuse of a child
  • Certain acts of terrorism.

When answering this question, it may be more appropriate to list which crimes under California law are ineligible for mental health diversion since nearly all crimes, felonies and misdemeanors, are eligible for mental health diversion.

If you are experiencing mental health issues that have caused you to be charged with a crime, the resolution of your matter through the California PC 1001.36 diversion program may be available as an option. John Patrick Dolan is a California State Bar Certified Specialist in Criminal Law, the highest achievement awarded by the State Bar of California to attorneys in the field of criminal law. Call today at (760) 775-3739 or find out more online here.

What Charges Are Eligible For Mental Health Diversion?

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