Diversion for those with mental disorders

Governor Brown signed AB 1810 on June 27, 2018 (Pen. Code, §§ 1001.35 & 1001.36). The law created Mental Health Diversion (MHD), a diversion opportunity for participants with mental disorders. He also signed SB 215 on September 30, 2018, amending MHD. The amended law took effect on January 1, 2019. The amendments exclude certain crimes from eligibility (murder; voluntary manslaughter; any 290 registrable crime except Pen. Code, § 314; rape; other sex crimes; possession or use of a weapon of mass destruction), allow the court to require the participant to make a prima facie showing of eligibility, and require the court to hold a restitution hearing and order restitution. Penal Code section 1001.36 creates a discretionary pretrial diversion procedure for a participant charged with a misdemeanor or felony, who suffers from a mental disorder listed in the current Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the symptoms of which can respond to treatment, if the mental disorder played a significant part in the commission of the charged offense. 

A. To be granted diversion, ALL of the following requirements must be met:

1. The court is satisfied the defendant suffers from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.
2. The court is satisfied the defendant’s mental disorder played a significant role in the commission of the charged offense; that the mental disorder substantially contributed to the defendant’s involvement in the commission of the offense (a nexus connects the mental disorder and the charged offense(s)).
3. In the opinion of a qualified mental health expert (QMHE), the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.
4. The defendant consents to diversion and commits to entering a time waiver upon entry into MHD. (Note that in some cases the application process may itself require a time waiver if the preliminary hearing or trial date is imminent.)
5. The defendant agrees to comply with treatment as a condition of diversion.
6. The court is satisfied the defendant will not pose an unreasonable risk of danger to public safety as defined in Penal Code section 1170.18, if treated in the community.
7. The court is satisfied the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.

B. Offenses NOT eligible for Mental Health Diversion:

1. Murder or voluntary manslaughter.
2. An offense that requires registration per Penal Code section 290, except for a violation of Penal Code section 314.
3. Rape.
4. Lewd or lascivious act on a child under 14 years of age.
5. Assault with intent to commit rape, sodomy, or oral copulation in violation of Penal Code section 220.
6. Commission of rape or sexual penetration in concert with another, in violation of section 264.1.
7. Continuous sexual abuse of a child, in violation of Penal Code section 288.5.
8. A violation of subdivision (b) or (c) of Penal Code section 11418.

C. Mental Health Diversion accomplishes its goals by adhering to the following guiding principles:

1. Individualized Treatment Programs: Identify a defendant’s treatment needs based on current diagnosis, diagnostic history, treatment history, trauma history, substance-use history, criminal history, current charges, available treatment resources in Fresno, and any other relevant consideration. Modify a defendant’s treatment program based on performance and needs while in MHD.
2. Promote Defendant Accountability: Monitor compliance with the treatment program on a clinically recommended and court-approved basis with regular reports by treatment staff. Require a defendant’s personal appearance in court unless waived in the court’s discretion. Provide clear consequences for noncompliance.
3. Evidence-based Programming: Promote the use of evidence-based practices for mental health treatment by clinical staff, attorneys, and other community providers. Evidence-based practice refers to the use of research and scientific studies to determine the best practices in the field.
4. Engage with Respect: Treat defendants with dignity and respect; protect their due process rights.
5. Foster Collaboration: Encourage cooperation among government agencies and community organizations to find creative solutions to local problems.
6. Program Flexibility: Evaluate and reevaluate the practices and policies of MHD. Be open to change, understanding that experience teaches what programs and practices are working effectively and when and what changes are advisable.
7. Education: Justice partners (private and public attorneys and Probation) agree to become knowledgeable about the basics of mental health disorders, their treatment, and privacy protocols.

Contact Us

Call us at (559) 233-5333 to make an appointment for your no-cost case evaluation. Find out if you qualify for Mental Health Diversion.