Mental Health Diversion

If you commit a criminal offense in California, and you have a mental illness/disorder, the law may allow you to seek diversion/treatment for the disorder. This program goes by the name pretrial diversion program in California. The California PC 1001.36 outlines the pretrial diversion program. If you complete the mental illness/disorder diversion/treatment successfully, The Court might dismiss your criminal charges. At this point, the law allows the sealing of your record or arrest for the majority of purposes. You will enjoy your freedom as if the arrest never took place. If you are facing criminal charges in Los Angeles, California, and you have a mental illness, Leah Legal can advise you on a pretrial diversion program.

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Understanding Pretrial diversion program

The California PC 1001.36 PC allows defendants with mental illness/disorders to take advantage of the mental health pretrial diversion and diversion/treatment program in the form of pretrial diversion in California. A pretrial diversion is a program that gives the defendant a chance to hold further action is his/her case and participates in a diversion/treatment program. With the help of an attorney, a defendant may request a pretrial diversion program at any stage in the criminal case. The defendant should request for the mental health pretrial diversion before the sentencing.

The program is advantageous because, after completing the diversion/treatment successfully, the court suspends/dismisses your criminal charges. The court then seals your record of arrest, and you cannot face victimization based on the arrest record. For instance, when applying for employment, potential employers will not be able to learn about your past arrest record even if the employer runs a background check.

Other forms of pretrial diversions in California available to people facing criminal charges include the California drug diversion program and the diversion program for military veterans who have mental disorders. Also available is the California diversion program for a bad check. In some parts of California, clients may take advantage of a diversion program for a general misdemeanor. The California pretrial diversion program came into effect after the coming to effect of Senate Bill 8 in California. The California statute outlining the diversion program took effect in June 2018

Eligibility for Pretrial Diversion Program

According to California law, the court has the discretion to decide whether to grant a pretrial diversion program or not. However, for you to qualify for the diversion program, you have to meet some requirements. It must be evident that you have a mental illness or disorder. In determining the existence of mental illness/disorder, the court relies on the recent edition/version of the DSM-V (Diagnostic and Statistical Manual of Mental illness/disorders). Some of the mental illness/disorders that may qualify for pretrial diversion include post-traumatic stress, schizoaffective disorder, and bipolar disorder. It is important to note that some conditions like an antisocial personality, pedophilia, and borderline personality may not qualify for pretrial diversion. 

For the court to consider that the defendant is suffering from a disorder, a careful evaluation of the DSM-V is necessary to help consider whether the mental illness/disorder qualifies for diversion.  The court might request your attorney to provide any evidence of your mental illness/disorder. The evidence may include reliable medical records revealing the results of mental tests carried out by a competent health professional. 

Suffering from a mental illness/disorder is not enough to help you qualify for the pretrial diversion program.  The disorder must have greatly contributed to your commission of the said crime. The court must be sure that you will benefit from the diversion program. Therefore, your symptoms and signs motivating the criminal conduct must be capable of responding to mental diversion/treatment. In determining whether your condition can respond to mental diversion/treatment, the court relies on the opinion/viewpoint of a competent mental health professional. 

For you to qualify and benefit from the diversion program, you have to consent to participate in the diversion/treatment. If you give consent to the program and waive your right to a fast/ speedy trial, The Court might grant you the chance. However, there may be an exception to the conditions if you are incompetent or unqualified to participate in a trial. If you are not willing to participate in the program, the court cannot force you. Instead, the court will continue with the sentencing and impose imprisonment, hefty fines, or pronation, depending on the circumstances of your case. 

Above all, before granting the pretrial diversion program, the court must be sure that you will not pose a significant unreasonable risk to the safety of the public upon allowing you to participate in a pretrial diversion program. In determining whether you are a risk to the safety of the public, The Court might seek the opinion of the District Attorney. The court might also rely on the counsel of the defense or qualified mental health professional. Before granting the pretrial diversion program, The Court might consider your criminal history and or your history of violent behavior.  While deciding whether to grant diversion, the court will also consider your current case. For instance, if the current case included violent conduct, you may not qualify for the program.  The court might also consider any other factors that it may deem relevant to your criminal case. 

Unreasonable Risk of Danger to the Public

According to California law, PC 1170.18 (c), a significant unreasonable risk of danger to the safety of the public means that there is a risk that you will commit a new violent felony. In considering whether you will pose a risk to the public, the court aims at preventing your commission of future claims. You may pose a significant unreasonable risk to the public under various circumstances.

First, you may pose a significant unreasonable risk if you are likely to commit sexually violent offenses outlined under the California Welfare & Institutions Code Section 6600 (b). Other unreasonable risks include sexual assault like oral copulation, sodomy, and sexual penetration if you commit the offenses against a person who is below the age of fourteen years. You also pose a significant unreasonable risk if you commit a sexual offense on a person who is more than ten years younger than you.

Other offenses that qualify as unreasonable risk include lascivious or lewd acts involving a child below the age of 14 years in violation of California PC 288. It is an offense to commit a homicide offense as outlined under California PC 187 through PC 191.5. Included in this category is a crime of gross vehicular manslaughter while intoxicated in violation of the Penal Code 191.5 (a). 

You may pose a significant unreasonable risk to the public if you solicit the commission of murder as outlined under California PC 653 f. You may be a risk to the safety of the public if you are likely to commit an offense assault with a machine gun on a peace officer or a firefighter, or a peace officer as outlined under the California PC 245 (d) (3). It is a risk to the public to possess a weapon of mass destruction. If you are likely to commit a violent or severe offense punishable by the death of life imprisonment in California, you are likely to pose a risk to the public. 

How long will the Mental Diversion/Treatment Last?

According to the California PC 100.36, a mental diversion/treatment may last for two years.  The program may either consist of inpatient and outpatient diversion/treatment, depending on the unique needs of the defendants.  Before the court approves a defendant's participation in the pretrial diversion program, the court puts into account the defense's request, prosecution, defendant, the safety of the community.

Costs for the Diversion Program

As you plan to apply for a pretrial diversion program, you may wonder about who will be responsible for meeting the costs of the diversion/treatment. Mainly, costs for mental health diversion/treatment, according to PC 1001.36, are paid by private or public funds. If you do not have the financial capability to afford private diversion/treatment, the court might refer you to a county health agency. The court might also refer you to collaborative courts. It is important to note that you will only take part in the diversion/treatment if the set-aside entity has taken up the responsibility for your diversion/treatment. For you to participate in the program, there must be an availability of resources that you qualify for.

The court has to be satisfied that the inpatient and the outpatient program you select will be able to meet your specified mental and health diversion/treatment needs. The diversion program must not last for more than two years. While you are on diversion/treatment, the provider of diversion/treatment should provide regular updates of your progress to the court and both counsels. 

Usually, the provider of mental diversion/treatment sends the progress report to both the prosecutor and the defense.  In some instances, the court might hold a court hearing to decide whether to modify the diversion/treatment program. During the hearing, the court might also decide whether to refer the defendant to an investigator for conservatorship proceedings. Before the court takes any action to amend the mental diversion/treatment program, the court informs the defendant, the prosecution, and the defense counsel.  

Reinstatement of Criminal Proceedings or Modification of Mental Diversion/treatment

While you are on the pretrial diversion program, certain factors may trigger reinstatement of criminal l proceedings of modification of your diversion/treatment. For the court to modify the diversion/treatment or reinstate the criminal proceedings, the court has to hold a hearing.  Some of the factors may trigger a court hearing. For instance, if you commit another misdemeanor offense during the mental health pretrial diversion period, it may trigger a hearing. The misdemeanor offense should reflect your propensity for violence.  You may trigger a court hearing if you commit another felony during the mental health pretrial diversion. If you engage in criminal behavior that renders you unsuitable for pretrial diversion, The Court might hold a hearing to decide on the way forward.  The court might hold a hearing depending on the advice of a qualified mental health professional. The expert may recommend for modification of your mental diversion/treatment if you are performing below expectations during the program. The expert may also recommend a modification if you are gravely disabled. In assessing disablement, the expert relies on the Welfare and Institutions Code section 5008 (h) (1) (B). It is only upon a finding under this statute that you can be subject to referral in a conservatorship investigator

Successful Completion of Mental Diversion/treatment Program

Upon successful completion of the mental diversion/treatment program At the completion of the diversion period, the court suspends/dismisses your criminal charges.  The law considers you to have completed a program successfully if you have complied with all the conditions of the diversion program. You must have avoided additional violations of the law not related to your mental health while on diversion programs. You must also have in place a plan for extensive mental diversion/health care.  If you fail to complete the diversion program successfully, The Court might reinstate your criminal proceedings. After the reinstatement of the criminal proceedings, you may use various defense strategies for your criminal case. 

When you complete the mental health diversion/treatment, the court will seal your criminal arrest and your criminal charges.  For most uses/purposes, the sealed criminal records will not appear, and it will be as if you did not commit the crime. For instance, an employer cannot deny you employment based on a sealed criminal record. With a sealed criminal record, you can be able to access other benefits, including state licensing, certificates, and benefits. 

However, sealed records may count in some instances. For instance, if you are applying to be a police officer in California, you have to disclose the sealed criminal record. In connection with an application for this post, the DOJ will disclose the sealed arrest.  The criminal justice agencies will have access to and even use sealed criminal records when performing their ordinary work duties. When the court is determining whether to grant you a pretrial diversion program upon committing a future criminal offense, The Court might consider previous sealed criminal records. At times, the sealed criminal record may be necessary to enhance the provision of continuing care and diversion/treatment. 

Sealed Criminal Records and Immigration

Successful sealing of your criminal record in California will not prevent it from counting in the immigration court. However, you may not face immigration consequences/implications from your mental health pretrial diversion if you do not admit charges to deportable or an offense that may make you inadmissible to the United States. You cannot face immigration consequences if you do not accept charges for facts that may be essential elements of a deportable crime in the U.S. 

If you are an immigrant in the United States, it is advisable to seek the counsel of an attorney before you agree to take part in a pretrial diversion program. Also, as an immigrant, you should never accept charges for an offense before you fully understand the immigration implications.  

The Duty of the Court after the Dismissal of your Charges

Once you complete the pretrial diversion program and the court suspends/dismisses your charges, the court will have some roles to play. First, the court clerk must file a record of dismissal of your criminal charges with the Department of justice.  The court also has to order a restriction of access to your dismissed criminal record. The restriction of the access of the criminal record is following California law PC 1001.9. 

Incompetency to Stand Trial

If the court finds you incompetent or unqualified to participate in a trial, you may still qualify for a diversion according to the California PC 1370 and 1370.01. If the court charges you with a felony offense and you are ineligible to stand trial, you may qualify for diversion under several circumstances. You will qualify for diversion as long as you have not gained access to a mental health facility. If the court has received any information outlining that you may benefit from the diversion, you may be eligible. The court might also use its discretion to determine whether a dependent may benefit from a diversion. For you to qualify for a diversion program, the program must not last more than two years for a felony offense. 

If you commit a misdemeanor offense and you are incompetent or unqualified to participate in a trial, you may qualify for diversion if the court decides that you are an ideal candidate for diversion. For a misdemeanor offense, you are eligible for diversion as long as the pretrial diversion program does not last for more than one year. 

An attorney plays a major role in determining your qualification for a pretrial diversion program in California. If you or your loved one would benefit from the California Pretrial diversion program, you must get in touch with an experienced attorney.  Go for an attorney who has assisted numerous people in finding a just and equitable resolution to their criminal charges. This way, you can be sure that the attorney will negotiate for the best outcome of your case.

Contact a Criminal Defense Attorney Near Me 

If you or a loved one commits a criminal offense in Los Angeles, CA, and you have a mental illness/disorder, you may benefit from the California pretrial diversion program.  It is important to seek legal counsel from a reliable criminal defense attorney.  Leah Legal can advise you on the best legal route for your case. Contact us at 818-484-1100 and speak to one of our attorneys.