What Is Mental Disorder Diversion (Penal Code 1001.36)?

The judge, as mentioned above, has discretion to deny such mental disorder diversion. The judge first must find that defendant “suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual (DSM) of Mental Disorder.”

Defendant must provide evidence of such a disorder in the form of a recent diagnosis by a qualified mental health expert. Penal Code § 1001.36(a)(1).

Second, the judge must find a nexus between the mental disorder and the crime. In other words, the judge must find that the mental disorder “played a significant role in the commission of the charged offense” or “substantially contributed to the defendant’s involvement in the commission of the offense.” Penal Code § 1001.36(a)(2). The judge can consider the police report (with all its errors), preliminary hearing transcripts (if the case is a felony), witness statements, other doctor reports, or any other evidence that defendant displayed symptoms consistent with the disorder at or near the time of the offense.

Third, the qualified mental health expert must opine “that defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.” Penal Code § 1001.36(a)(3). The court must later find that the recommended inpatient or outpatient program of mental health treatment will meet the specialized needs of defendant. Penal Code § 1001.36(c)(1)(a). Funding for this program can be public or private funds. Regular reports will then be submitted to the court for its consideration and monitoring of defendant’s progress.

Fourth, defendant must agree to diversion, as well as the terms of diversion and waive his or her right to a speedy trial under the Sixth Amendment. Penal Code § 1001.36(a)(4) and (a)(5).

Lastly, the judge must find that “defendant will not pose an unreasonable risk of danger to public safety, as defined under Penal Code § 1170.18, if treated in the community.” Penal Code § 1001.36(a)(6). We believe this last requirement is the one that will be the toughest to satisfy, as the judge may consider the opinions of the district attorney, defendant’s criminal history and the violence involved in the crime “and any other factors that the court deems appropriate.” Id.

If mental disorder diversion is granted, defendant does not have to enter a “no contest” or “guilty plea” first. This is not delayed entry of judgement. It is a delayed entry of plea diversion.

Defendant can certainly be removed from diversion if he or she does certain things such as “picking up” a new case, even if a misdemeanor and especially if it “reflects defendant’s propensity for violence.” Penal Code § 1001.36(d)(1). If the treating professional notifies the judge that defendant is not doing well in the program, the judge can remove defendant from diversion and reinstate criminal proceedings.

This is one program that is worth going “all out” to have defendant referred to, as it avoids the scarring that a criminal conviction creates and allows defendant to get the treatment necessary to avoid all future criminal conduct.

For more information about diversion in general, please click on the following articles:

1. What Is Diversion, Delayed Entry of Plea and Deferred Entry of Judgment?
2. Diversion Programs in California for Armed Forces Veterans
3. Is Alcoholics Anonymous Objectionable on Religious Grounds?