Benefits of Mental Health Diversion under New Law PC 1001.36

Penal Code sections 1001.35-1001.36 were added to the California Penal Code June 27, 2018 to create a new statutory scheme that provides the Court the discretion to place qualified criminal defendants into “Pretrial Mental Health Diversion”.

On June 21, 2018, Penal Code section 1001.35 through 1001.36 became effective after enactment of Assembly Bill 1810 by the Legislature, creating a new statutory scheme that provides the Court discretion to place criminal defendants on a new type of pre-trial diversion targeted at defendants suffering from recognized mental health conditions. See Cal. Penal Code §§1001.35-1001.36. The new statutory scheme permitting pretrial mental health diversion was created to promote:

(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.

Cal. Penal Code §1001.35.

The new statutory scheme allowing for pretrial mental health diversion thus creates a vehicle by which the Court can prevent unnecessary harm to a defendant in terms of a criminal record, while ensuring that a defendant suffering from a qualified mental health condition obtains the treatment needed to avoid risk of recidivism associated with untreated mental health conditions.

In the next section the procedure and process governing discretionary pretrial mental health diversion will be discussed, as the scheme is laid out under Penal Code section 1001.36. See Cal. Penal Code §1001.36.

 

Penal Code section 1001.36 governs the procedure, process, and outcomes associated with the newly created “Pretrial Mental Health Diversion” scheme.

While Penal Code section 1001.35 states the purpose of pretrial mental health diversion, Penal Code section 1001.36 governs the authority of the criteria that would allow a Court to exercise its discretion to place a defendant on pretrial mental health diversion, as well as the mechanics of how the diversion regime should be implemented if a court exercises its discretion to place a defendant on pretrial mental health diversion. See Cal. Penal Code §§ 1001.35-1001.36.

(a)       Discretion to Place a Defendant on Pretrial Mental Health Diversion.

A court has discretion to place a defendant on pretrial mental health diversion regardless of whether he or she is charged by way of “accusatory pleading alleging the commission of a misdemeanor or felony offense”. Cal. Penal Code § 1001.36(a). In exercising its discretion to place a defendant on pretrial mental health diversion, the Court must consider both, “the positions of the defense and prosecution”. Id. Furthermore, the Court’s discretion in granting pretrial mental health diversion is limited in terms of whether the defendant, “meets all of the requirements specified in subdivision (b)” of Penal Code section 1001.36. Cal. Penal Code § 1001.36(a).

(b)       Definition of “Pretrial Mental Health Diversion” under Penal Code section 1001.36 and Timeframe for Diversion Period.

          The definition of pretrial mental health diversion is defined under Penal Code section 1001.36(c) as, “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment”. Cal. Penal Code § 1001.36(c). In terms of length of the diversion period, the statute states that, “The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.” Cal. Penal Code § 1001.36(c)(3).

(c)       Criteria for Eligibility of a Defendant for Pretrial Mental Health Diversion

As stated above, in order for the Court to exercise its discretion to place a defendant on pretrial mental health diversion, the defendant must meet, “all of the requirements specified in subdivision (b)” of Penal Code section 1001.36. See Cal. Penal Code § 1001.36(a). This criteria governing eligibility to be placed on pretrial mental health diversion is thus governed by Penal Code section 1001.36(b), which lays out six eligibility components that all must be satisfied in order qualify a defendant for a grant of pretrial mental health diversion, as follows:

(1) The court is satisfied that the defendant suffers from a mental disorder as 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. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.

(2) The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. A court may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense.

(3) In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.

(4) The defendant consents to diversion and waives his or her right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.

(5) The defendant agrees to comply with treatment as a condition of diversion.

(6) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Cal. Penal Code § 1001.36(b).

Thus, in order for a defendant to be eligible for pretrial mental health diversion under Penal Code section 1001.36, a defendant must: suffer from a qualified mental health disorder, be able to demonstrate that the qualified mental health disorder played a significant role in the alleged offense, be suitable for mental health treatment determined by the Court that are targeted to ameliorate the mental health symptoms contributing to the defendant’s criminal behavior, 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 must be determined by the Court to not pose an unreasonable risk to public safety if the defendant participates in the Court-determined mental health treatment in the community. See Id.

In terms of the factor citing, “an unreasonable risk of danger to public safety” under Penal Code section 1001.36(b)(6), the Court should base its  definition of that concept by  the description provided for by Penal Code section 1170.18, which states, “‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” See Cal. Penal Code § 1170.18(c). The offenses listed under clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code include:

(I) A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

(V) Solicitation to commit murder as defined in Section 653f.

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

See Cal. Penal Code § 667(e)(2)(C)(iv).

As stated above, the court may also consider, in determining whether a defendant poses an unreasonable risk to public safety as defined by Penal Code section 1170.18, “the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.” Cal. Penal Code § 1001.36(b)(6).

The pretrial mental health diversion statute under Penal Code section 1001.36 further places conditions on the mental health treatment described by the statute in the eligibility section under Penal Code section 1001.36(b), which will be discussed in the next section.

(d)  Considerations regarding Treatment Component of Pretrial Mental Health Diversion.

Two conditions govern the pretrial mental health diversion treatment component of pretrial mental health diversion. First, the Court must be, “satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” Cal. Penal Code § 1001.36(c)(1)(A). In addition, the mental health treatment component of the diversion program is subject to the following  treatment options, considerations, and limitations:

The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.

Cal. Penal Code § 1001.36(c)(1)(B).

The Court thus has wide discretion in determining what type of mental health treatment the defendant should receive as a component of mental health diversion under Penal Code section 1001.36.

            Any treatment provider acting in accordance with the mental health diversion treatment component must, “provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.” Cal. Penal Code § 1001.36(c)(2).  In order to facilitate the defendant’s participation in the mental health treatment component of the pre-plea diversion program under Penal Code section 1001.36:

The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.

Cal. Penal Code § 1001.36(i).

Permitting access of the parties managing the defendant’s participation in mental health treatment to the defendant’s relevant mental health records is thus required for participation in pre-plea mental health diversion to tailor care to the defendant’s personal needs.

If the Court or interested parties believe that the defendant is not satisfactorily participating in pretrial mental health diversion, the statutory scheme under Penal Code section 1001.36 provides for a procedure to revoke diversion and reinstate criminal proceedings, or modify terms of the diversion grant, which will be described in the next section.

(e)      Procedure for Revoking Defendant’s Grant of     Pretrial Mental  Health Diversion and Possibly Reinstating Criminal  Proceedings, or for Modifying Terms of Diversion Grant

The procedure for modifying or revoking a defendant’s diversion grant under Penal Code section 1001.36 upon a belief by the Court that the defendant is not satisfactorily participating in diversion is discussed under Penal Code section 1001.36(d):

If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:

(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.

(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.

(3) The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion.

(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:

(A) The defendant is performing unsatisfactorily in the assigned program.

(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.

Cal. Penal Code § 1001.36(d).

Thus, if the defendant subject to pretrial mental health diversion continues to engage in criminal activity, or is not satisfactorily participating in or benefiting from the mental health treatment required by the diversion grant, the Court should conduct a hearing to determine whether the terms of the diversion grant should terminate and reinstate criminal proceedings, be modified to be more effective, or terminate and place a defendant on a conservatorship. Id.

Conversely, if a defendant does satisfactorily participate in a grant of pretrial mental health diversion, the statutory scheme under Penal Code section 1001.36 provides a number of incentives to the defendant, which will be discussed in the next section.

 

(f)      Benefits of Successful Completion of Mental Health Pre-plea         Diversion Grant

If a defendant placed on a grant of pre-plea mental health diversion successfully participates in the program to the satisfaction of the Court within the timeframe delineated by the Court, the defendant is eligible for a number of benefits that avoid negative consequences associated with a criminal arrest, prosecution, or conviction. A Court may determine that the diversion grant was successfully completed if, “the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care.” Cal. Penal Code § 1001.36(e). Other benefits flowing from a successfully completed diversion grant are  described by Penal Code section 1001.36(e), stated in relevant part as follows:

If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.  . . . If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (h). The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).

Cal. Penal Code § 1001.36(e), emphasis added.

Thus, the benefits to the defendant after successful participation and completing of a diversion grant include a dismissal of the criminal action, a determination that the arrest the prosecution was based on “never occurred”, and permits the defendant to state in response to any question concerning a criminal record that he or she was not arrested, diverted, or convicted of the diverted offense. Id.

Other employment-related advantages further follow from a defendant’s successful completion of pre-plea mental health diversion, in that:

A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

Cal. Penal Code § 1001.36(f).

Successful completion of diversion under Penal Code section 1001.36 provides an array of opportunities for the defendant to obtain, or keep, an employment position or license by preventing disclosure of the fact of participation in the diversion program provided by the statute. Id.

Aside from employment benefits, the records contained in the Court’s file related to the defendant’s eligibility for or participation in mental health diversion are protected from disclosure without the defendant’s consent, “unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution,” or if relevant to a subsequent request by a defendant for participation in diversion under Penal Code section 1001.36. Cal. Penal Code § 1001.36(h).

Two limitations, however, apply to the benefits of a successful grant of a pre-plea mental health diversion related to employment and disclosure of participation in the diversion program under Penal Code section 1001.36. This includes an,  “obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.” Cal. Penal Code § 1001.36(g)(1). In addition, the sealed records related to the grant of diversion, “has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.” Cal. Penal Code § 1001.36(g)(2).

Clearly, consistent with the purpose of the pre-plea mental health diversion scheme described by Penal Code section 1001.35, the benefits to defendant who successfully treats and participates in mental health diversion under Penal Code section 1001.36 allow such a defendant to “mitigate the individuals’ entry and reentry into the criminal justice system” without endangering the public in the appropriate case. As will be shown in the next section, Ms. Flores fits all of the criteria for eligibility described by Penal Code section 1001.36(b) to be placed on a grant of pre-plea mental health diversion that begs the Court’s serious consideration for exercising its discretion to allow her to so participate in the pre-plea mental health diversion program described by  Penal Code section 1001.36.

Advocating for Your Rights

Being charged with a crime can have drastic consequences that can seriously endanger one’s options and  opportunities for a better future. Mental health conditions are increasingly common and affect people from all backgrounds, vocations, and classes.  If you or a loved one has been charged with a misdemeanor or a felony offense that may have been the result of a mental health condition, you need an experienced defense team on your side to take full advantage of the opportunities in the new law under Penal Code section 1001.36 that provide a mechanism for the case to be dismissed and sealed without the consequences of a criminal conviction. Call Honeychurch & Boyd today at 707-429-3111 for a free consultation as to how we may be able to achieve the best possible results for your case.

 

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