Changes to California’s Mental Health Diversion Statute

Mental health can often play a role in a person’s conduct or behavior leading up to their arrest and criminal charges. Recent changes to the law have expanded eligibility for California’s Mental Health Diversion under California Penal Code section 1001.36. If you or a family member have a mental health diagnosis and have been charged with a Felony or Misdemeanor crime in Los Angeles, Orange County, Riverside County, San Bernardino County, or anywhere in California, you may be eligible for a mental health diversion under California Penal Code section 1001.36.

Mental Health Diversion under Penal Code section 1001.36 is a pre-plea diversion, meaning you do not have to enter a plea or make an admission, and it can be granted at any time during the criminal proceedings prior to trial. If granted, the criminal proceedings will be paused and the defendant will have an opportunity to complete certain requirements, such as engagement and compliance with mental health treatment. These requirements are often tailored to the particular facts of the case, and their mental health diagnoses and symptoms. The Court will dismiss the case once it is satisfied that the Mental Health Diversion has been successfully completed, allowing the defendant the opportunity to walk away without a conviction.

Mental Health Diversion may be granted in certain Felony and Misdemeanor cases, including, but not limited to theft crimes, such as petty theft, grand theft, violent crimes, such as robbery, assault, assault with a deadly weapon, battery, criminal threats, carjacking, and arson.

To qualify for a grant of Mental Health Diversion under Penal Code section 1001.36, the Court must be satisfied that:

• The defendant suffers from a qualifying mental disorder.
• The defendant’s mental disorder played a significant role in the commission of the charged offense.
• The defendant’s symptoms of the mental disorder would respond to mental health treatment.
• The defendant agrees to waive their right to a speedy trial.
• The defendant agrees to comply with treatment.
• The defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Often, a defendant’s eligibility for Mental Health Diversion hinges on convincing the Court that there is a nexus between the allegations and the defendant’s mental illness. However, as of January 2023, the California Legislature, by passing California Senate Bill No. 1223, expanded the eligibility for persons seeking mental health diversion by effectively shifting the burden to show a nexus between the allegations and the defendant’s mental illness from the defendant to the prosecution.

Specifically, Penal Code section 1001.36 now states that “the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. ”

In the same legislation, Senate Bill No. 1223, the California Legislature also shortened the length of Mental Health Diversions for misdemeanor offenses from a maximum of 2 years to 1 year. The maximum length for Mental Health Diversion in Felony cases remains 2 years.

The shortened length for Mental Health Diversion is beneficial for qualifying defendants who can have their cases dismissed upon successful completion of the Mental Health Diversion in a shorter amount of time.

If you or a family member are facing criminal charges it is imperative that you hire the best attorney that you can and explore all options available, including Mental Health Diversion. Los Angeles criminal defense attorney Michael Kraut is a former Deputy District Attorney in Los Angeles County with over 14 years of prosecutorial experience. Attorney Michael Kraut has extensive experience with clients suffering from mental health issues and knows how to effectively push for Mental Health Diversion and other resolutions to secure for his clients the absolute best result.

For more information about Mental Health Diversion, and to schedule your free consultation, contact attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.