Mental Health Diversion

Defendant, too, must be qualified.  The statute covering mental health diversion, Penal Code § 1001.36, excludes defendants with mental illnesses include antisocial personality disorder, borderline personality disorder and pedophilia.

The more common mental disorders, i.e. schizophrenia, bipolar disorder, schizoaffective disorder and post-traumatic stress disorder are qualified for relief under 1001.36.

Diversion under 1001.36 can last up to two years.  If defendant successfully completes the course of mental health treatment, i.e. with a psychologist or psychiatrist or some type of specialized counselor, the judge can then order the arrest record and court file sealed. Penal Code § 1001.36(e).  


Second, defendant must persuade the judge that there is a nexus between the mental disorder and the crime.  In other words, the judge must find that the mental disorder “played a significant role in the commission of the charged offense” or “substantially contributed to the defendant’s involvement in the commission of the offense.” Penal Code § 1001.36(a)(2).  

We find this is the toughest requirement of being granted mental health diversion – and we have lost such motions based on this.  There usually is little debate that the defendant suffers from some form of mental illness, but judges often disagree with a mental health expert on whether there is any connection between the mental illness and the crime.

The judge can consider the police report (with its inaccuracies and omissions), the preliminary hearing transcripts (if the case is a felony), witness statements, other doctor reports, or any other evidence that defendant displayed symptoms inconsistent or consistent with the disorder at or near the time of the offense.


Third, the qualified mental health expert must opine “that defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.”  Penal Code § 1001.36(a)(3).  The court must find that the recommended inpatient or outpatient program of mental health treatment will meet the specialized needs of defendant. Penal Code § 1001.36(c)(1)(a).  Periodic progress reports will then be submitted to the court for its consideration and monitoring of defendant’s progress.

Fourth, defendant must consent to diversion, as well as the terms of diversion and waive his or her Sixth Amendment right to a speedy trial if granted diversion.  Penal Code §§ 1001.36(a)(4) and (a)(5).

Lastly, the judge must find that “defendant will not pose an unreasonable risk of danger to public safety, as defined under Penal Code § 1170.18, if treated in the community.”  Penal Code § 1001.36(a)(6).  This requirement has been interpreted to mean that the defendant would pose an unreasonable risk of committing a “super strike,” which is an offense listed at Penal Code § 667(e)(2)(c)(iv) (i.e. murder, any homicide, solicitation to commit murder, assault with a machine gun on a police officer or fireman, possession of a weapon of mass destruction, or any serious or violent felony punishable by life in prison or death).

Governor George Deukmejian Courthouse
Long Beach Superior Court

Defendant can certainly be removed from diversion if he or she does certain things such as “picking up” a new case, even if a misdemeanor and especially if it “reflects defendant’s propensity for violence.” (i.e. a domestic violence case) Penal Code § 1001.36(d)(1).  If the treating professional notifies the judge that defendant is not doing well in the program (i.e. missing appointments), the judge can remove defendant from diversion and reinstate criminal proceedings.