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Mental Health Diversion – Penal Code Section 1001.36

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Recently enacted legislation in California can allow for “diversion” for misdemeanors and felonies. This is where there is evidence of a mental health disorder of the defendant is presented with a significant cause of the crime which is amenable to professional treatment. Furthermore, this is an exciting new statute that allows a court to divert an appropriate defendant from the criminal justice system. In order to avoid the penalties of a regular criminal prosecution, they are able to participate in appropriate counseling and treatment. Prosecutors almost always oppose a defendant’s request for mental health diversion. Because of this, it is necessary to have an attorney experienced in this new area of the law. Kenneth H. Lewis is someone you can trust who has a record of success in getting this type of diversion granted.

What are the Requirements of Mental Health Diversion in California?

Types of Crimes: While both misdemeanors and felonies can qualify, not all crimes qualify for mental health diversion under an amendment to the original statute, which became effective on January 1, 2018. Crimes that are excluded include the following:

  • Murder or voluntary manslaughter.
  • Any offense requiring sex registration under Penal Code Section 290.
  • Rape
  • Lewd or lascivious acts on a child under 14 years of age.
  • Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 290.
  • Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
  • Continuous sexual abuse of a child, in violation of Section 288.5.
  • A violation of subdivision (b) or (c) of Section 11418 – Possession, etc. of weapons of mass destruction.

Statutory Requirements: The following conditions are required before a court will grant mental health diversion:

  • The defendant must suffer from a mental disorder as identified in the DSM V (the psychiatrist’s/psychologist’s handbook of mental disorders).
  • The defendant has a “recent” diagnosis of the disorder by a qualified mental health professional.
  • The defendant’s mental disorder played a significant role in the commission of the charged offense.
  • The defendant’s symptoms motivating the criminal behavior would respond to mental health treatment as opined by the qualified mental health professional.
  • The defendant consents to diversion and waives his/her right to a speedy trial.
  • The defendant agrees to comply with treatment as a condition of diversion.
  • The court determines the defendant will not pose an unreasonable risk of danger to public safety.
  • There is a recommended plan for mental health treatment that will meet the needs of the defendant.

Procedures for Obtaining Diversion

Mental Health Diversion is obtained by your defense counsel making a written “motion” before the court for the granting of diversion. This is done after the defendant has been examined by a qualified psychologist or psychiatrist and a qualifying written report has been prepared and attached to the motion. The district attorney, or city attorney in a misdemeanor case, will have an opportunity to respond in writing to the defendant’s motion. Ultimately, the matter will be argued before the Judge who will decide whether or not to grant the diversion. If it is granted, a mental health program will be required and the defendant must faithfully adhere to it or diversion will be revoked and the defendant’s case will proceed as if nothing had happened. Diversion can last for up to two years.

Benefits of the Diversion

If the court agrees that all of the above requirements are met and diversion is granted, the defendant’s case is “diverted” from the regular course of a criminal case. The defendant is not required to go to trial or plead guilty to the charges with all of the possible results that are entailed (jail or prison, fines, probation or parole, etc.). The defendant must follow all the terms of the mental health program which can include taking medication, receiving counseling, inpatient treatment and/or outpatient treatment and must not fail to attend and follow all of the program’s requirements. The defendant cannot be involved in another crime. Periodic reports of the defendant’s progress in the program and appearances before the court will be required until the diversion ends.

After successful completion of the mental health program, the court will dismiss all charges and the records will be sealed and cannot be used against you for employment purposes (though they would still be available to law enforcement organizations and in certain other court proceedings).

Thus, mental health diversion can be a means of dismissing your entire case and sealing the records, as if there was no crime charged in the first place!

Call Kenneth H. Lewis now for help with this exciting new law that can not only have your case dismissed, but the records sealed from public view.

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