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Mental Health Diversion Program: How It Can Help Defendants Charged with a Crime and Suffering from a Mental Disorder

When someone is accused of having committed a crime, it does not necessarily mean they are a menace to society hellbent on breaking the law. In certain circumstances, a criminal defendant may be struggling with mental health issues that contributed to their committing a crime.

In the State of California, a defendant charged with committing a crime, who is also struggling with a diagnosed mental disorder, may be able to avoid the harsh punishments of the California Penal Code by participating in “Mental Health Diversion.”

What is Mental Health Diversion?

This is a state program, codified in § 1001.36 of the California Penal Code, which went into effect in June 2018. Judges in California have discretionary authority to permit criminal defendants who are suffering from a recognized mental illness to participate in a special program that helps them get the treatment they desperately need, rather than incurring harsh penalties and a criminal record. If a defendant successfully completes treatment through the mental health diversion program, the criminal charges against them will be dismissed and their arrest record will be sealed for most purposes. Basically, this means it will be as though the arrest never happened.

Who Qualifies for the Mental Health Diversion Program?

Qualifying for this diversion program is not a simple process. There are numerous prerequisites that must be met in order to be even be considered for California’s mental health diversion program. For example, the defendant must waive their right to a speedy trial. This is a right afforded to all criminal defendants pursuant to the Sixth Amendment to the United States Constitution. In essence, participation in the diversion program side-steps compliance with this constitutional provision. As a result, in order for a defendant to qualify for the diversion program, they must affirmatively waive their right to a speedy trial. A caveat to this general requirement is when the defendant is unable to provide a knowing and intelligent waiver of their Constitutional rights due to the severity of their mental illness. In this instance, a court has the discretionary authority to order diversion without a waiver.

Once an affirmative waiver is made, the process has only begun for most defendants. In order to qualify for the diversion program, the defendant must present evidence of a recent diagnosis of a recognized mental illness or disorder by a qualified mental health expert. Relevant evidence of this medical diagnosis may include:

  • Medical examination of the defendant
  • Review of the defendant’s medical records
  • Review of the police report concerning the defendant and the alleged criminal offense

Once a recognized mental disorder is diagnosed, the defense must demonstrate that the disorder played a major role in the defendant’s alleged criminal actions. In many instances, for a judge to grant diversion to a criminal defendant, they need to be satisfied that the evidence indicates the defendant's mental disorder significantly influenced their actions and/or participation in the alleged crime. In order to make this determination, the judge may consider:

  • Reports from qualified, licensed medical professionals
  • Copies of police reports
  • Transcripts of any preliminary hearings
  • Witness statements
  • Copies of the defendant’s medical records and/or
  • Statements from a mental health provider who has reviewed or met with the defendant

Once it is established that a defendant has a recognized mental disorder and that it played a major role in the defendant’s actions, the defense must then show that participation in the diversion program would be beneficial. This can be accomplished with a report or statement from a qualified mental health expert affirming that treatment through the diversion program would be effective.

Even after it is established that the defendant’s participation in the diversion program would be beneficial, a judge will generally only allow the defendant to enter the program if the risk of danger to the public is minimal. Basically, the judge must be persuaded that the defendant would not pose an unreasonable risk of danger to the general public if they were allowed to seek treatment for their mental illness within the community. The following factors are routinely considered by a judge in making this determination:

  • The recommendation and assessment of the defendant’s attorney
  • The recommendation and assessment of the district attorney assigned to the defendant’s case
  • The recommendation and assessment of a qualified, licensed mental health expert
  • The criminal history (including any prior convictions for violent offenses) of the defendant
  • The specific criminal offense that the defendant is charged with committing (e.g., whether it was a violent offense such as murder, rape, assault and battery, etc.)

Finally, the defendant must agree to comply with mental health treatment as a condition of participating in the diversion program.

Length of Treatment Under California Penal Code § 1001.36

If a judge grants a defendant’s request to participate in the diversion program, the treatment will not continue indefinitely. Pursuant to the provisions of § 1001.36, a defendant participating in the program can receive treatment for up to two years through either inpatient or outpatient treatment.

Where Can a Defendant Receive Treatment Under the Program?

It is possible for a defendant to receive treatment at a private or public mental health facility. However, a private facility requires the defendant to have health insurance or sufficient financial resources to cover the costs. If a defendant is unable to afford private treatment, the court may refer them to a county mental health agency or an existing “collaborative court.” A collaborative court is an evidence-based court model that establishes a court “team” focused on building a long-lasting partnership of community-provided services that involve the county government, along with the Board of Supervisors and Superior Court administration. Generally, collaborative courts work with individuals and families who have found themselves in California’s criminal justice system and are struggling with mental illness, substance abuse, and other serious social welfare issues.

A defendant assigned to a collaborative court is supervised by judicial officers who oversee the defendant’s treatment progress through regular court hearings. The court has the authority to utilize incentives and sanctions in an effort to keep the defendant on track during their treatment program.

The reason collaborative courts came into existence is because it is critical for members of the community who are facing complex social welfare issues, like mental illness, to have access to substance abuse and mental health treatment programs through state agencies that provide academic and vocational programming, social services for offenders and their families, housing and other resources. The ultimate objective is for the defendant to eventually make a successful re-entry into the community.

How is a Defendant’s Treatment in the Diversion Program Assessed for Completion?

A defendant is considered to have successfully completed the diversion program when they have met the following requirements:

  • There is evidence that the defendant substantially complied with the requirements of the diversion program
  • The defendant avoided any significant new violations of criminal law unrelated to the defendant's mental health condition
  • There is a plan in place for the defendant to receive long-term mental health care

What Happens When a Defendant Does Not Successfully Complete the Diversion Program?

If a defendant does not successfully complete the diversion program, the court will reinstate the criminal proceedings.

Will Participation in Mental Health Diversion “Seal” Your Criminal Record?

If you successfully complete the diversion program, the criminal charges filed against you will be dismissed and the record of your arrest will be sealed, as if the arrest and prosecution never occurred. This is an incredible benefit of the diversion program since it effectively removes the arrest record. As a result, you will not be at risk of being denied employment, benefits, licensure, etc., due to a prior arrest.

However, it is important to note that sealing a record in California does not mean it is prohibited from consideration by an immigration court. Nevertheless, there should be no negative ramifications related to your immigration status as long as: 1) you did not plead guilty to a removable (i.e. deportable) offense or an “inadmissible” crime and 2) you did not admit to any facts that are essential elements of such an “inadmissible” criminal offense. If you are concerned with how an arrest could impact your immigration status, it is in your best interest to consult with an experienced attorney.

Benefits of Representation by Skilled Legal Counsel

When you are charged with a serious crime, the potential long-term ramifications of a conviction are significant. Your liberty is on the line when you are looking at a lengthy prison sentence and you may be ordered to pay steep fines. This is why it is important to retain the services of a knowledgeable and experienced criminal defense attorney. The benefits of quality legal representation are vast. Here are a few:

 

No. 1 – Effective Analysis of Your Case and Development of a Comprehensive Defense Strategy

Every criminal case is different, and an experienced defense attorney can identify certain arguments and factors that could help mitigate the charges filed against you or even get the charges dropped completely.

 

No. 2 – Assistance in Analyzing and Negotiating Any Plea Offer

The vast majority of criminal cases are not brought to trial before a jury but are resolved through out-of-court plea agreements. A plea offer — depending on the unique facts of your case — can reduce your potential sentence or eliminate some of the charges brought against you by the state. Having an attorney by your side is a huge advantage in initiating and negotiating a plea agreement. Your attorney can help you assess the viability of the plea offer and negotiate better parameters and provisions for the deal.

 

No. 3 – Identify Procedural Rules That Were Violated

There is an array of specific rules, regulations and procedures associated with criminal prosecution. If one or more of these rules and regulations were violated or ignored by law enforcement or state authorities, then it may be possible to have the evidence against you thrown out. An experienced and knowledgeable attorney can conduct the necessary research to help build a compelling defense.

 

No. 4 – Hire Expert Witnesses and Investigators to Focus on Your Case

An experienced defense attorney usually has a team of professionals working alongside them to help build your defense. This typically includes a paralegal, investigator(s) and the ability to retain the services of an expert witness, or witnesses in order to mount a compelling and persuasive defense. The use of investigators and/or expert witnesses will depend on the complexity of your case.

 

No. 5 – Help Guide You Through the Complex and Intimidating Legal Process

Getting charged with a crime can be very stressful but going through the entire legal process from formal charge to court decision can be overwhelming. You owe it to yourself to have a skilled advocate on your side to help level the proverbial playing field against the state.

Now is the Time for Action – Contact an Experienced Attorney

If you or a family member is suffering from a mental disorder and charged with a crime in California, you may be able to avoid the strict and harsh penalties associated with the California penal system through participation in the mental health diversion program. To determine your eligibility and options, call the Law Offices of Christopher J. McCann today at (949) 596-0060 for a free, confidential case review.

We understand the strategies necessary to mount an effective defense for someone struggling with the difficulties of mental illness. You do not need to go through this alone. We are here to help.

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