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Mental Health Diversion: Eligibility Criteria Changed

SB 1223 is an act to amend Sections 1001.36, 1370, and 1370.01 of the Penal Code, relating to criminal proceedings where mental health is a factor in the commission of a crime.

Under existing law, the court can grant a pretrial diversion period (postponing prosecution) of up to 2 years to allow a defendant suffering from a mental disorder a chance to undergo treatment.

Previously, eligibility for mental health diversion depended on a court ruling that a defendant has a mental disorder and that mental disorder contributed significantly to the commission of the offense that the defendant is charged with.

With the amendments introduced by SB 1223, eligibility for mental health diversion will no longer depend on a court finding, but on a diagnosis of a mental disorder, and that diagnosis and any treatment should have been within the last 5 years.

Eligibility Requirements for Pretrial Diversion

To be eligible for mental health diversion, you should meet the following criteria:

You should suffer from a qualifying mental health disorder

You should be diagnosed with a mental disorder listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Examples of such disorders include bipolar disorder, post-traumatic stress disorder, schizophrenia, or schizoaffective disorder.

You do not qualify if you have the following disorders: antisocial personality disorder, borderline personality disorder, and pedophilia.

A qualified mental health expert should diagnose you of these disorders by conducting an examination, relying on your medical records, and arrest reports.

Diagnosis and treatment should take place within 5 years of the offense you are charged with.

The mental disorder should be a significant factor in your commission of the offense

Unless the court finds that your mental disorder did not contribute to the commission of an offense, the court will consider the mental disorder a motivating factor.

The court will rely on police reports, witness statements, medical records, statements or reports from mental health providers and medical experts, or evidence that the defendant had shown symptoms of a mental disorder prior to committing the offense.

What the Court Looks For Before Granting Pretrial Diversion

If the court finds that you meet the eligibility requirements listed above, the court will grant your plea for pretrial diversion provided:

  • A qualified mental health expert has ascertained that your mental disorder will respond to treatment
  • You consent to diversion (if the court finds you are mentally competent to do so) and waive your right to a speedy trial. If the court finds you incompetent, the court shall rely on the evidence provided to commit you to a mental facility for diversion.
  • You are not a danger to the community. If your treatment program will take place in the community, the court needs to be certain that you will not be a threat to public safety. The court will rely on your criminal history, the DA's opinion, and the opinion of a qualified mental health expert.
Convictions exempted from Diversion

SB 1223 did not amend the section on felony crimes exempted from mental health diversion, but it is still worth mentioning those convictions.

The following felony offenses do not qualify for mental health diversion:

  • Murder
  • Voluntary manslaughter
  • A crime that requires a defendant to register as a sexual offender
  • Rape
  • performing lewd acts on a child less than 14 years old
  • Assault with intent to commit rape, sodomy, or oral sex
  • Committing "Rape in Concert" where you aid another person to commit rape
  • Sexual abuse of a child

Using weapons of mass destruction to cause damage to people or natural resources

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