California’s statute that provides for mental health diversion is Penal Code 1001.36. This program allows certain individuals with mental health issues to receive treatment in lieu of prosecution and jail if they have been charged with a crime.

If the accused successfully completes treatment, the criminal charges get dismissed. The arrest record will then be sealed for most purposes and it will be as though the arrest had never happened.

Penal Code 1001.36 is the result of the passage of California Senate Bill 215 (SB 215), which became effective on June 27, 2018.

In this article, the California criminal defense attorneys of Spodek Law Group will discuss:

1. What exactly is mental health diversion?
2. What circumstances qualify a defendant under California PC 1001.36?
3. How long is PC 1001.36 treatment?
4. Who covers the cost of mental health diversion?
5. How is progress of the treatment measured?
6. What follows after the treatment is complete?
7. Does mental health diversion “seal” a person’s criminal record?
8. After completing Mental Health Diversion, can a record of the arrest be used in immigration court?
9. What is the difference between PC 1001.36 and proposed Senate Bill 215?

1. What exactly is mental health diversion?

California’s “Mental Health Diversion” program makes it possible for some criminal defendants to get mental health treatment if they are accused of a crime.  This is a form of “pretrial diversion” in California as set forth in Penal Code 1001.36 PC.

“Pretrial diversion” defined

“Pretrial diversion” programs allow a willing candidate to postpone further action in his or her case in order to participate in a treatment program.  It may be requested at any point in a criminal case prior to sentencing.

The benefits of California’s pretrial diversion

On successful completion of a pretrial diversion treatment program, the charges against a defendant are dismissed. Their record of the arrest also gets sealed.  After all is said and done, it will be as if the arrest had never happened.

• Other pretrial diversion programs in California include:
• The California drug diversion program,
• The Military diversion program for veterans with mental health issues,
• The California “bad check” diversion program, and
• In some counties, there are general misdemeanor diversion programs.

The present mental health diversion program in the State of California resulted from the passage of California Senate Bill 8 (“SB 8”).   The legislation in SB 8 / PC 1001.36 came into effect on June 27, 2018.

2. What circumstances qualify a defendant under California PC 1001.36?

Misdemeanor and felony defendants alike may be considered for mental health diversion under PC 1001.36.  That said, the court can only approve a program of treatment in the cases where all of the following conditions apply:

1. The accused suffers from a mental health condition other than an antisocial personality disorder, borderline personality disorder, or pedophilia;
2. The person’s mental disorder played a significant role in the commission of the crime;
3. In the opinion of a qualified mental health expert, the accused would respond to mental health treatment;
4. The accused consents to diversion and waives his or her right to a speedy trial;
5. The accused agrees to cooperate with treatment as a condition of diversion; and
6. The court is satisfied that the accused will not pose an unreasonable risk of danger to public safety.

3. How long is PC 1001.36 treatment?

Mental health diversion under Penal Code 1001.36 can be a as long as two years.  It can be an inpatient or outpatient treatment program.

Before he or she approves a proposed treatment program, the judge must take under consideration:

• The defense’s request,
• The prosecution’s request,
• The defendant’s needs, and
• The community’s interests .

4. Who covers the cost of mental health diversion?

The costs for mental health treatment under PC 1001.36 can be covered by private or public funds.  If the accused cannot afford private treatment, the court could refer him or her to a county mental health agency or any existing collaborative court.

The defendant will only be able to avail himself or herself of a treatment program in the event that the designated entity has agreed to accept responsibility for the treatment, and there are available resources for which the defendant is eligible.

5. How is progress of the treatment measured?

The provider of the selected diversion treatment program will provide consistent progress reports to the court.  These reports will also be sent to the defense and the prosecution.

Sometimes, unexpected events occur during the course of the treatment.  For example:

• The defendant could be charged with a new misdemeanor that reflects a propensity for violence;
• The defendant could be charged with a new felony;
• The defendant takes part in criminal conduct that makes him or her unsuitable for diversion; or
• A qualified mental health expert notifies the court that:
  • The defendant’s progress in the assigned treatment program is not satisfactory, or
  • The defendant has become gravely disabled.

In cases where any of these triggering events take place, the court holds a hearing to determine whether:

• The treatment program needs to be modified,
• Criminal proceedings against the defendant need to be reinstated, or
• The defendant needs to be referred to a county investigator for possible conservatorship

Prior to the hearing, the court will notify the defendant, defense counsel, and the prosecuting attorney.

6. What follows after the treatment is complete?

On the other hand, when the defendant successfully completes the treatment program, at the end of the diversion period the court dismisses all charges.   A person is considered to have successfully completed a mental health diversion program when he or she:

• substantially complied with all the requirements of diversion,
• avoided any significant new violations of law unrelated to the defendant’s mental health condition, and
• has put a plan in place for continued mental health care.

If the defendant did not successfully completed the program, then the court will reinstate the criminal proceedings against the them.

7. Does mental health diversion “seal” a person’s criminal record?

Upon a defendant’s successful completion of mental health diversion, the charges against the defendant will be dismissed. The arrest record is sealed.  For most purposes, it will be as if the arrest and prosecution never took place.  The record would not be available for use in denying the individual any benefit, employment, license, or certificate.

8. After completing Mental Health Diversion, can a record of the arrest be used in immigration court?

Sealing an arrest record in California does not remove it from consideration by an immigration judge.

Immigrants are advised to consult with an experienced California criminal defense lawyer before agreeing to participate in any diversion program.

9. What is the difference between PC 1001.36 and proposed Senate Bill 215?

Sicne the summer of 2018, the California legislature has been considering another mental health diversion law. The bill that at the time of this writing is still under consideration is California Senate Bill 215 (SB 215), which has since been amended by the California Assembly.  The passage of this bill would mean a new law, California Penal Code 1001.82 PC.  Under proposed PC 1001.82, mental health diversion would be pretty much the same as under PC 1001.36, but with the following important differences:

1. From then on, PC 1001.82 would only permit mental health diversion for misdemeanors and for felonies that are punishable in county jail. The defendant would not be eligible if tjeu were charged with a felony punishable in California state prison.
2. Mental health diversion would not be available in for certain felony offenses unless the prosecutor consents, including:
   • Vehicle Code 10851, The “joyriding” law,
   • Vehicle Code 23153, a DUI in which injury is caused,
   • California’s “manslaughter” legislation,
   • California drug offenses,
   • Child pornography charges, and
   • California gun offenses.

The progress reports from the treatment provider would be required at least every three months.

If you or your loved one has a mental disorder and has been charged with a crime, feel free to call us for your free consultation.

Call our offices to discuss your case in confidence with one of the experienced California criminal lawyers of Spodek Law Group.  We understand the best defenses for individuals with mental illnesses who get charged with a crime in California.

We will treat you and your loved one with the utmost respect and fight aggressively to protect his or her rights.