After the passing of Senate Bill 215 in 2018, California allowed defendants facing criminal charges to enroll in a treatment and counseling program in mental health. This program, known as mental health treatment diversion program, enables defendants to receive treatment instead of legal penalties when they commit a crime. The laws on this program are defined under PEN 1001.36. If you are facing criminal charges and have a mental illness that made you commit the offense, you can avoid jail time and opt for this program.
A conviction for a criminal offense that you never intended or was triggered by your mental illness can be frustrating. At Orange County Criminal Defense Attorney Law Firm, we can petition the court for you to serve this program and avoid jail or prison sentences.
Overview and Benefits of the Mental Health Diversion Program
As earlier stated, a mental health treatment diversion program is a type of a pretrial diversion program that allows defendants to receive treatment for mental health if charged with a criminal offense. This pretrial program will allow you to postpone a trial or sentencing and instead participate in the program. Your lawyer can petition the court for this consideration at any stage of the case. However, it must be done before your sentencing.
A pretrial diversion program for mental health has various benefits. If you complete the program, the criminal charges you face are dropped. Equally, your arrest record is sealed, and no one will ever find it in your criminal background.
Eligibility to Mental Health Treatment Diversion Program – PEN 1001.36
Most pretrial diversion programs discriminate against persons facing felony charges. However, PEN 1001.36 is more tolerant. According to the program, you can be eligible to participate irrespective of whether you are facing felony or misdemeanor charges. However, not every defendant is eligible to participate in the program. The judge has the discretion to allow your participation if you meet certain conditions or terms. These include:
- You have a mental or psychological disability. But, this disability does not apply to specific mental health illnesses or conditions such as:
- Borderline personality disorder
- Antisocial personality disorder
- Your mental or psychological disability is what contributed to your committing the offense you are facing charges for
- A mental or psychological health expert accepted by the court must testify to it or give their opinion on your mental state. If this expert recommends you for the treatment program, you may qualify, but if they believe that you wouldn’t benefit from the program, they will inform the court
- You must agree to the terms in the pretrial diversion program. This means, agreeing to give up some constitutional rights you would otherwise have if you went on a standard trial. For instance, if you accept the program, you will lose your right to have a speedy trial. This is critical because you will put the case on hold as you receive treatment and counseling for your mental health
- You must agree to adhere to the program’s conditions and follow them strictly to qualify for it under PEN 1001.36
- Your criminal attorney must also convince the court that you pose no risk or are not dangerous to society by enrolling in this program instead of the conventional punishment
Understanding these eligibility requirements is critical to know if you qualify for the program or not. Here, we discuss these requirements in detail and what obstacles can disqualify you from the program’s admissibility. Understanding these requirements and the charges against you helps you provide sufficient information to your lawyers that will enable them to represent you the best way possible.
Having a Mental or Psychological Health Condition
Before you qualify for the program, the mental or psychological condition you suffer from must be known and listed in a mental health manual. California courts depend on the Diagnostic and Statistical Manual (DSM) of mental disorders to establish if your condition is listed there. You qualify for the pretrial mental health treatment diversion program if you suffer from any below conditions:
- Post Traumatic Stress Disorder (PTSD)
- Schizophrenia and
- Bipolar disorder
Some mental conditions, as earlier discussed, do not allow you to enter into the program. Before admitting you to the program, the court requires evidence that you suffer from these conditions. Through the help of a certified mental health expert that diagnoses the situation, your lawyer can present convincing findings to the court.
The mental health expert before giving their recommendations will look at the following:
- Your general outlook by carrying a comprehensive examination on you
- Your medical history or details
- Your criminal history
After reviewing, the expert writes their findings and recommendations and submits them to court. If your case is complicated, the expert could give their testimony in court. If this is not the case, the written recommendations are considered before the judge decides.
Your Mental Condition was Significantly the Reason you Committed the Crime
If you qualify for the mental health diversion program, your lawyer must convince the court that your condition made you commit the crime. Your lawyer will use evidence derived from the crime and show the symptoms you displayed of the state. The police records, statements from witnesses or their testimonies, court transcripts, and a mental health expert testimony will support your case. The prosecutor can also present their case why the diversion program should not be awarded to you by showing evidence that you knew what you were doing.
After listening to both sides, the judge will evaluate the evidence and arguments presented and decide if the diversion program will be helpful to you and a better way to rehabilitate you or not.
You are an Excellent Candidate for the Diversion Program
Faking that you have a mental or psychological problem to qualify into the diversion program will not work. The court decides if the program will help you by seeking an expert’s opinion from a mental health professional in their panel. The expert’s testimony must indicate that the symptoms that resulted in you committing the said crime will reduce following the treatment.
Giving up Your Right to a Quick Trial
Based on the 6th Amendment, every defendant in a criminal case is entitled to a speedy trial. If you are petitioning the court to commit you to a mental diversion program under PEN 1001.36, you automatically freeze the prosecution of your case until you complete your program. However, if you cannot intelligently and knowingly let go of this right due to your psychological or mental condition, you cannot give it up. If the judge believes the diversion program will help you, the judge will allow you to attend the diversion program without giving up your right to a speedy trial.
You Agree to Engage in the Mental Diversion Program
It is important to note that no one can force you into the diversion treatment program unless you want it. If you decline to participate, your trial continues as it should. According to PEN 1001.36, only those willing to participate can benefit from the program.
The Community is not at Great Risk if You Participate in the Diversion Program
One of the traditional punishments perpetrators of crimes face is jail time. Before the judge agrees to have you participate in the diversion program, the court must be persuaded that you are not a risk to your community. This is a critical consideration because the treatment program can be in or outpatient or both.
In making the decision, the judge considers arguments from both the state and your defense attorney. Your unique needs and the public’s interests are also considered before deciding whether the diversion program is suitable.
What You Should Know About PEN 1001.36 – Mental Health Treatment Diversion Program
The diversion program for mental health in California lasts for twelve months to eighteen months. Legally, the treatment program cannot prevail over two years. The treatment program can allow you to attend the sessions and go home or commitment into a facility, or in some cases, both. The mental treatment program’s decision is suitable for you is arrived at by the judge after listening to both sides and your unique needs.
In some cases, you will be required to foot the bill for the treatment program. However, if you prove to the court that you are unable to pay, you might be directed to the local mental health department or a different court. The mental health department takes responsibility by giving and overseeing the treatment. They must also have sufficient resources required to manage the program successfully. With the help of your attorney, you can determine the available programs near you.
California has a specific organization tasked with running this program. This organization must give periodic reports of your progress in the program. The district attorney’s office is also given a copy of the report. Based on the information, a decision might be arrived at to adjust the treatment or maintain it.
The reports also help in determining whether the program is helpful or not. If the program is found not to help you, the diversion treatment program may be stopped, and standard criminal proceedings occur.
At the hearing, the prosecutor will work to prove that you knowingly committed the offense you are charged with, and you need to be punished for it. In doing so, the prosecutor will establish the various elements to the crime beyond a reasonable doubt.
On the other hand, your defense attorney will challenge the prosecutor’s case to have the charges dropped or receive a less harsh penalty. In challenging the case, your lawyer will present evidence that disputes the offense’s elements, as illustrated by the prosecutor. Some of the situations that can result in you having your diversion program terminated and in its place a hearing convened include:
- During the diversion period, you commit another offense either a felony or a misdemeanor that shows you have violent tendencies
- You involve yourself in a criminal activity suggesting you do not qualify to be in the mental health treatment diversion program
- A professional in mental health in the court’s panel suggesting that you fail to meet the conditions and terms of the treatment program
On completing the treatment program by adhering to the terms, the charges are dropped. The law states that you complete the treatment program if all the below happened:
- You met all the conditions of the treatment diversion program
- You never committed new offenses that are not relatable to your mental state and
- You have come up with a plan on your mental and psychological well being
If the diversion program is stopped for some reason, you will face the formal criminal proceedings due to your offense and receive the punishments according to the law.
Sealing of your Criminal Record
After completing the diversion program requirements, the charges against you are dropped, and your arrest record is expunged. This is unlike standard cases where you will have to petition the court to expunge your records after completing your sentence. With a mental diversion program, your record’s sealing is automatic once you have completed the treatment program.
When this happens, it will seem like you have never been arrested or prosecuted for the offense. If anyone asks if you have been arrested or charged with the crime before, you will rightfully answer in the negative. When the record is sealed, it means your history cannot be used to deny you employment, benefits, or certificates.
However, there is a way that the sealed records are used or are expected to be declared. These situations are:
- When you apply for a job as a peace officer, the Department of Justice will not be expected to deny your past in such cases and will reveal your record before you are offered the job. However, this does not serve to deny you an opportunity to work as a peace officer if you qualify.
- During their regular duties, agencies tasked with criminal justice can refer to the sealed records.
- If in the future, you are faced with another offense that requires you to be committed to the mental health diversion program, your sealed records can be used as a point of reference.
- Your sealed records can also be used in your continued treatment of your condition.
Your Arrest Record and Immigration
Having your records sealed does not prevent the immigration department from using it in court. However, if you are an immigrant, you should face no consequence on your immigration status if you received a mental health treatment diversion instead of traditional punishment. But this is only possible when:
- You don’t take a guilty plea to an offense that is deportable or inadmissible
- You don’t admit to any truths essential to proving the various elements of the offense
If faced with criminal charges as an immigrant that qualifies you for a mental health diversion program, it is advisable to discuss it with an attorney before opting for the program. Additionally, you must never admit or take a guilty plea to an offense before understanding its repercussions to your immigration status.
Differentiating Between PEN 1001.36 and Senate Bill (SB) 215
Aside from the original mental health diversion program, SB 215 created another law for mental diversion under PEN 1001.82. Under this new law, the diversion program is similar to the older one found under PEN 1001.36. However, there are fundamental differences between the two statutes. These include:
- The diversion program under PC 1001.82 would only be available for misdemeanor offenses or felonies punishable in county jails. If the felony charge you face is punishable in the state prison, you are not eligible for the treatment program.
- Some particular felonies would not qualify you for the diversion program. However, if the prosecutor consents, you may be offered the diversion instead of traditional punishment. These felony violations that would not qualify for the treatment program include:
- VEH 10851 – joyriding
- VEH 23153 – DUI offense causing injuries
- Manslaughter laws in California
- Drug crimes in California
- Gun crimes
- Child pornography
- Under this program, your therapist will be expected to provide the court with reports of your progress or growth. This is expected after every ninety days.
- Under PEN 1001.82, the decision to pay the victim of your offense restitution is at the judge’s discretion. The judge can order you to pay restitution while undergoing your treatment program. If you cannot pay restitution because you are homeless or because of your mental condition, the court will not disqualify you from the diversion program. Additionally, your inability to pay does not mean you are ineligible for the program or the conditions therein.
Other Pretrial Diversion Programs in California
Aside from the mental health pretrial diversion program, California has other rehabilitation programs that defendants qualify for depending on their crime. These pretrial programs include:
The Drug Diversion Program of California
The statute that governs this diversion program is found under PEN 1000. If you are arrested and charged with simple possession of drugs, you will qualify for the diversion program instead of traditional trial and punishment. One of the conditions for qualifying for this program is that the offense involved no violence.
This means not every person accused of a drug crime qualifies for the diversion program. The charges that you should be facing are those of possession for personal use but not to sell or distribute.
To qualify for the drug diversion program, you must meet all and not part of the conditions below:
- You should not have a conviction record for a drug crime in the last five years that does not qualify for PEN 1000
- The current offense you are facing must not have been accompanied by violence or by threats of violence
- Before the diversion program is offered, no evidence should be found against you indicating you were involved in a more serious crime like that of distributing or selling the drugs
- You must not have been convicted of a felony in the last five years
Like under PEN 1001.36, the program’s successful completion will have the charges against you dropped, and your record sealed.
PEN 1001.80 – Military Diversion Program for Veterans with Mental Health Issues
As the name suggests, this program is available to veterans and active military personnel. Because of their work nature, many of them suffer trauma that can lead to mental health problems. If a veteran or active military personnel commits an offense, and a mental health issue is found to have led to their behavior, the court can sentence them to treatment.
Most mental health or traumatic issues veterans or active military personnel suffer from include:
- Sexual trauma
- Post-traumatic stress disorder (PTSD)
- Substance abuse
- Traumatic brain injuries
- Mental health issues
Just like in the other diversion programs, not every person qualifies for it. The program is only available to members of the United States military currently serving or previously served. These persons are considered if they suffered from some of the above conditions during their service.
After completing the program, the defendant’s record is sealed after dismissing the charges against them. This means they can rightfully answer that they were never faced with criminal charges for the particular offense.
Find a Criminal Defense Lawyer Near Me
If you or a loved one is charged with a crime and suffers from a mental disorder, speaking with an experienced criminal attorney is critical in ensuring you receive the required help and not punishment. Your attorney should tell you the available options and fight for you to receive the best outcome possible.
At Orange County Criminal Defense Attorney Law Firm, we understand a criminal charge’s frustrations and work towards giving our clients the best representation possible. If you have a mental issue and are charged with an offense, call our office at 714-740-7848, and we will discuss your options and offer you excellent representation.