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How Does Having a Mental Illness Affect My Case?

The California statute that governs mental health diversion is Penal Code 1001.36. When people with mental illnesses are charged with a crime, this program allows them to receive therapy instead of being prosecuted and doing time in prison.

If the offender successfully completes rehabilitation, the criminal charges against him or her will be dismissed. The arrest record will be sealed for the most part, and it will be as if the arrest never happened. The adoption of California Senate Bill 215 resulted in Penal Code 1001.36. (SB 215). On June 27, 2018, it went into effect.

When a criminal defendant is charged of a crime, California's "Mental Health Diversion" program allows them to receive mental health therapy. It is a type of "pretrial diversion" in California, as defined by Penal Code 1001.36 PC. A "pretrial diversion program" allows a willing offender to defer future proceedings in his or her case in exchange for participation in a treatment program. It can be requested at any stage before a defendant is sentenced in a criminal case.

PC 1001.36 allows both misdemeanor and felony defendants to be considered for mental health diversion. However, the court can only approve a treatment plan if ALL of the following criteria are met:

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

To be qualified for PC 1001.36 diversion, the offender must have a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual. Among the illnesses that qualify are Bipolar disorder, Schizophrenia, Schizoaffective disorder, and Post-traumatic stress disorder ("PTSD"). PC 1001.36 does not apply to defendants with antisocial personality disorder, borderline personality disorder, or pedophilia.

The defense must present a recent diagnosis from a licensed mental health professional. The expert may use any relevant evidence, such as a defendant's examination, medical records, and arrest reports.

In order to authorize diversion, the judge must believe that the defendant's mental illness played a significant role in the charged crime. The judge may get to this conclusion if the defendant showed signs of the condition at or close to the time of the alleged offense.

For a defendant to be eligible for diversion, a qualified mental health practitioner must believe that counseling would be beneficial. He or she must declare unequivocally that the defendant's disorders, which drove the illegal activity, would respond to mental health treatment.

To allow diversion, the judge must be convinced that the defendant's mental illness played a significant role in the charged crime. The judge may get to this conclusion if the defendant showed signs of the condition at or near the time of the alleged offense. For a defendant to be eligible for diversion, a qualified mental health practitioner must believe that counseling would be beneficial. He or she must declare unequivocally that the defendant's disorders, which drove the illegal activity, would respond to mental health treatment.

The defendant must agree to counseling as a condition of diversion. Finally, the judge must be convinced that the offender will not pose an undue risk of jeopardizing public safety if treated in the community. The court may consider the district attorney's opinion, the defendant's lawyer's opinion, a competent mental health expert's opinion, the defendant's criminal history and history of violence (if any), and the seriousness of the accused offense.

A maximum of two (2) years of mental health diversion is permitted under Penal Code 1001.36. Inpatient or outpatient therapy may be used. The charge will be dismissed at the end of the diversion period if the offender completes the treatment program satisfactorily (s). 30 A defendant is considered to have successfully completed the program when he or she has complied with the diversionary requirements in large part, has avoided significant new violations of the law unrelated to the defendant's mental health condition, and has a plan in place for long-term mental health care.

The court will reopen the criminal case against the defendant if the diversion program is not completed satisfactorily. The accused will still be entitled to raise any available criminal defenses to the charges.

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