Pursuant to a new California Law enacted in 2018, certain individuals are possible candidates for diversion and dismissal of many felony and misdemeanor charges.

California Penal Code Section 1001.36 states in part: “On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and
prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).

(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:

(1) The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to,
bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.”

This means that for many felony and misdemeanor charges if the defendant can show that he is suffering from most types of schizophrenia and/or most types of PTSD, than he may be a suitable candidate for diversion and dismissal.

There are some requirements that must be met to qualify for this new diversion program.

First, the defense must provide supporting evidence and must include a recent diagnosis by a qualified mental health expert.  That expert may rely on examinations of the defendant, medical records of the defendant and arrest reports.  Many times if a defendant has been incarcerated for even a short period of time, there will be medical records generated by the medical staff during the defendants stay in jail.  These records are very helpful.

Second, the court (judge), must find that the mental disorder played a significant or substantial roll in the commission of the charges being alleged.  This would be determined by looking at the police reports,
preliminary hearing transcripts, mental health provider reports and medical records of the defendant.  Obviously, if the defendant committed a crime that had no connection with his mental disability, then the diversion program would not be justified.

Third, a qualified mental health expert needs to find that the defendant’s motivating symptoms to commit the crime being charged are in fact amenable to mental health treatment.  In other words, if the
defendant doesn’t appear likely to be responsive to treatment, then diversion will not be granted.

Fourth, the defendant must obviously waive his or her right to a speedy trial.  Remember, while the screening process is taking place, the criminal proceedings are simply being continued, not suspended entirely.

Fifth, the defendant must comply with the terms and conditions of the diversion plan including treatment.  Many courts will look more favorably at granting the diversion under California Penal Code 1001.36
if the defendant is willing to pay for the costs of treatment (this, of course, includes insurance).

Sixth, the court must find that the defendant does not pose an unreasonable risk of danger to public safety if treated.  In making this determination, the court will consider many factors including but not
limited to: the district attorney’s opinion, the defense attorney’s opinion, the expert’s opinion, the defendant’s level of violence associated with the charged crime along with the criminal history of the
defendant and the level of violence, if any, associated with those prior charges and convictions.  Obviously, the court has broad leeway taking into account many factors as to whether a person poses an unreasonable risk.

Seven, if diversion is granted, the prosecution is postponed, not dismissed.  Once diversion is successfully completed, the charges are dismissed.  Diversion can be offered anytime during the criminal
proceedings, either before or after the preliminary hearing and at any time up to adjudication of the matter.

Eight, the court must be satisfied that the recommended inpatient or outpatient program will meet the needs of the defendant.  Translation:
the defendant’s treatment will significantly reduce the likelihood that he will re-offend.

Nine, the treatment as stated above may be procured using private or public funds and based on experience, it would appear that courts may be more receptive when the defendant, or his/her insurance picks up the tab.

Ten, the defendant must provide the court with regular reports from the mental health provider documenting the treatment, prognosis, and progress being made.  These reports are usually generated on a monthly or quarterly basis. The whole process, however, cannot take longer than two

Finally, criminal proceedings can be reinstated if any of the following occur: the defendant is charged with a new misdemeanor during the diversion and that misdemeanor reflects a propensity for violence, any felony, criminal conduct unsuitable for diversion, the expert says that the defendant’s performance is unsatisfactory, or the defendant becomes gravely disabled.

If the diversion is satisfactorily completed, the court dismisses the charges and it is deemed to have never occurred.  Remember, unlike other diversion programs, there is no guilty plea taken up front.