Applying New Mental Health Diversion Standard

In 2018, the Legislature enacted Penal Code § 1001.36, creating a pretrial diversion program for defendants with mental disorders.  The primary purpose of the legislation was to keep people with mental health issues from entering and reentering the criminal justice system while protecting public safety to give counties discretion in developing and implementing mental health rehabilitative services. 

In a way, mental health diversion can be viewed as a special form of probation that gives certain defendants a second chance.  Certain crimes were not eligible for diversion, i.e., murder and rape, and certain types of disorders are not eligible, i.e., anti-authoritarian disorder.

The statute was later amended in 2022 to only required that the judge be “satisfied” that defendant’s mental disorder was a significant factor in the crime (a “nexus”) and provided the judge could make this conclusion based on “any relevant and credible evidence,” including police reports, preliminary hearing transcripts, statements by defendant’s mental health provider, and other medical records.

If defendant made a prima facie showing that he or she met all the threshold eligibility requirements and that he or she and the offense were suitable for diversion, and the trial court was satisfied that the recommended program of mental health treatment would meet the specialized mental health treatment needs of defendant, then the judge has discretion to grant such diversion.

On January 1, 2023, the statute was further simplified by allowing a presumption that a defendant’s diagnosed mental disorder has a connection to the offense.  Some might say the strict nexus requirement between the mental health condition and the crime was relaxed and to permit the judge to deny diversion if the People rebut this presumption.  To rebut the presumption, the People must show by “clear and convincing evidence that it [the mental health condition] was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.”  Penal Code § 1001.36(b)(2).

The revised statute permits a judge to grant mental health diversion if (1) the defendant presents evidence that in the last five years he or she has been diagnosed by a qualified mental health expert with a mental health disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSMMD); and (2) the defendant’s disorder was a significant factor in the commission of the charged offense.  Penal Code § 1001.36(b)(1), (2).

The judge must then consider whether the individual is suitable for diversion under Penal Code § 1001.36(c).  A defendant is suitable when the following four criteria listed under Penal Code § 1001.36(d) are met:

In other words, diversion is expressly discretionary even what all of the criteria are met.  “A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard [citations], or bases its decision on express or implied factual findings that are not supported in substantial evidence.”  People v. Gerson (2022) 80 Cal. App. 5th 1067, 1080 quoting People v. Moine (2021) 62 Cal. App. 5th 440, 449 (a case out of Torrance Superior Court).

An example of an abuse of discretion, we believe, was in a recent case we litigated in the Long Beach Superior Court.  Our client was accused of indecent exposure (Penal Code § 314).  Our office filed a motion for mental health diversion after the passage of the relaxed legal standard, as discussed in this article.  The judge agreed that our client was qualified, but found that he was not suitable because she believed our client would commit a rape if released into the community for mental health treatment. 

It merits mention that our client had no criminal history of rape or any act of violence, but more importantly, the motion was heard well over a year after the date of his arrest and our client had undergone a full year of treatment already by the time the motion was heard – and he had not committed any offense during that time, let alone rape.