Mental Health Diversion in California Criminal Prosecutions

Effective in June of 2018, Penal code 1001.36 provides for mental health diversion, which allows a criminal defendant to receive mental health treatment and avoid a criminal conviction and jail time under certain circumstances.

Mental health diversion is available prior to a conviction, meaning you do not have to plead guilty to a crime you are charged with to receive diversion under PC 1001.36. Essentially, it allows a judge to continue your criminal case to allow you to complete a diversion program with the ultimate goal of having your charges dismissed. However, mental health diversion is also available at any time prior to sentencing, meaning you can still ask for diversion after you have been convicted even if you went to trial.

Mental health diversion requires that you suffer from a mental health condition (antisocial personality disorder, borderline personality disorder, and pedophilia are specifically excluded), that the disorder played a significant role in the commission of the charged offense, an expert has opined you would respond to treatment, you do not pose an unreasonable risk of danger to public safety, and you consent to the treatment plan and agree to comply with it.

In practice, this means your lawyer will identify and hire an expert to prepare a report for the court that identifies your disorder and connects it to the commission of the crime you are charged with, proposes a treatment plan, and opines that you will benefit from treatment. Your lawyer will then bring a motion before the court requesting diversion.

If the motion is granted and your case is diverted, it can last up to two years. You will have to appear for progress reports with the court to ensure that you are progressing in treatment. If during the period of diversion, you commit new crimes or do not satisfactorily participate in treatment, diversion can be terminated and the criminal case will be reinstated.

If you successfully complete diversion, not only will the charges against you be dismissed, the record of your arrest will be sealed by the court.

If you are charged with a crime and believe you may qualify for mental health diversion, it is important to immediately consult with an attorney experienced in bringing diversion motions. At the Law Office of Frances Prizzia, we will work with you to determine whether you are potentially eligible, identify an expert to evaluate you and craft a treatment plan, and prepare and litigate the motion asking the court to enter you into diversion.

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