Restrictions on Eligibility for Mental Health Diversion Under PC 1001.36
Penal Code § 1001.36 authorizes a court to grant pretrial diversion to defendants suffering from a mental health disorder. Qualified mental health disorders include but are not limited to bipolar disorder, schizophrenia, schizoaffective disorder and post-traumatic stress disorder. The defense must provide evidence to the court of the defendant’s mental health disorder. Evidence of the disorder must include a “recent diagnosis by a qualified mental health expert.”
Existing law makes defendants charged with the following crimes ineligible for diversion:
- Murder or voluntary manslaughter
- Offenses that require a person to register as a sex offender
- Lewd or lascivious act on a child under 14 years of age
- Assault with intent to commit rape, sodomy, or oral copulation
- Commission of rape or sexual penetration in concert with another person
- Continuous sexual abuse of a child
- Violation of Penal Code § 11418 (b) or (c)
In addition, those diagnosed with antisocial personality disorder, borderline personality disorder and pedophilia are considered ineligible pursuant to this statute.
Successful Completion of the Program
A court may grant a dismissal of the charges if the defendant successfully completes the diversion program. If a defendant in the diversion program fails to substantially comply with all requirements of the inpatient or outpatient program they attend, is charged with a new offense or fails to have a plan in place for long-term mental health care, relief will not be granted.
Pretrial Diversion Programs
Pretrial diversion programs are an important tool utilized by the courts. If successful, a defendant may have the criminal charges dismissed. It is always important to consult a qualified criminal defense attorney if you have been charged with a crime.