Can Restitution Be Set After Mental Health Diversion?

The answer to the rhetorical question posed in this article’s title is no.  To understand why this is so, a review of the recent First Appellate District ruling in People v. Monica Berlin is helpful.  In this case, the prosecution asked the judge to award the victim over $17,000 in restitution after mental health diversion had ended.  The judge ordered such an award, but on appeal, the First Appellate District reversed the award.

In July 2017, the San Francisco County District Attorney’s Office filed an information charging Ms. Berlin with felony stalking (Penal Code § 646.9(b)) between December 2015 and February 2016, as well as six misdemeanors, including two counts of violating a restraining order (Penal Code § 273.6(a) and four counts of violating a civil domestic violence protective order (Penal Code § 166(c)(1)).

On March 9, 2020, the trial court judge, Charles S. Crompton, suspended criminal proceedings and placed Ms. Berlin on mental health diversion.  In 2020, the maximum period of mental health diversion was two years (now (2024) it is one year). Penal Code § 1001.36(f)(1)(C); see also People v. Frahs (2020) 9 Cal. 5th 618, at 627.

On March 30, 2022, the case came on calendar for a victim impact statement and Ms. Berlin’s attorney moved to dismiss the information based on her successful completion of diversion and argued that since the prosecution never made a request for victim restitution prior to the end of restitution.

Ms. Berlin’s attorney argued that payment of victim restitution is usually ordered at the beginning of mental health diversion, as a condition of such diversion.  However, since the request came after Ms. Berlin had successfully completed two full years of diversion, the judge lacked jurisdiction to order such an award.

Ms. Berlin’s counsel then appealed the restitution award to the First Appellate District Court in San Francisco.  

The First Appellate District’s opinion agreed that the award was too late.  It explained that Penal Code § 1001.36(f)(1)(D) set forth the procedures for imposing restitution for defendants on mental health diversion: “Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion.”

Since Ms. Berlin had already completed the maximum term of mental health diversion before the date of the restation order, restitution could not be paid during the period of diversion.

The appellate court noted that the District Attorney’s Office offered no reasonable interpretation of the statutory language that encompasses an order made after the two-year period of diversion and that requires payment after dismissal of criminal charges.  After all, Penal Code § 1001.36(H) required the trial court to dismiss the criminal charges “at the end of the [two-year] period of diversion,” and the statute does not contain any language reserving authority for the court to order restitution after the end of the statutory period, much less after termination of Ms. Berlin from mental health diversion as took place in May, 2022.

Lastly, the appellate court commented upon the DA’s argument that a restitution award was mandated by the California Constitution, pointing to article I, section 28, subdivision (b)(13)(B), which provides, “Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”  The appellate court quickly pointed out that Ms. Berlin was never convicted.

We present this article for the reader because with mental health diversion now being just one year, a DA overlooking restitution is perhaps more likely than when the diversion period was longer, at two years, and the DA had more time to present a restitution demand.