Mental Health Diversion After Declaring a Doubt?

One requirement of mental health diversion is that the defendant waives his right to a speedy trial to participate in a program of mental health diversion.  Another requirement is that defendant agree to participate in such a program.

Therefore, if an attorney declares a doubt under Penal Code § 1368 because he or she does not believe the client understands the nature of the proceeding and cannot participate in the proceedings to assist his or her defense in a meaningful manner, can the same defendant waive his Sixth Amendment right to a speedy trial and agree to participate in mental health diversion?  Some may say defendant cannot if counsel declares a doubt.  Others may say, yes, that is possible. 

Defendant Gerardo Arvizu Velador’s case put this issue to the test.  

On a separate issue, if proceedings are suspended in the trial court after a doubt is declared, but before competency is determined, does the trial court retain jurisdiction to grant mental health diversion?

After the Riverside County District Attorney charged Mr. Velador with battery on a police officer, (Penal Code § 243(b)), a misdemeanor, resisting or obstructing a peace officer (Penal Code § 148(a)(1)) and reckless driving (Vehicle Code § 23103(a) in 2019, Mr. Velador’s counsel declared a doubt under Penal Code § 1368 and asked for a competency determination.

The trial court judge suspended proceedings under § 1368 and a doctor’s evaluation was ordered under Penal Code § 1017.  Two doctors actually examined him.

While the competency determination was still pending, Mr. Velador’s counsel filed a motion for mental healthy diversion pursuant to Penal Code § 1001.36.  As evidence, defendant's counsel attached the Evidence Code § 1017 evaluation, the two doctor reports submitted to determine defendant's competency to stand trial, police reports, and previous mental health records for defendant.  Defense counsel also filed a letter from Compton Family Mental Health that provided defendant had been diagnosed with a qualifying mental health disorder and had been receiving services since February 2021.

In response, the People argued that a competency determination was required before diversion could be granted.  

Nonetheless, the trial court judge granted mental health diversion while proceedings were still suspended.  

Before Mr. Velador was determined competent to stand trial, however, the People appealed the trial court’s ruling to grant mental health diversion before competency was determined.  

While the appeal was pending, Mr. Velador was determined competent, rendering the appeal moot.

However, the Fourth Appellate District published an opinion on the issue to decide whether the trial court had jurisdiction to grant diversion before Mr. Velador’s competency had been decided, as this issue certainly could reoccur in any trial court.  In other words, the determination of this issue was in the public interest and was likely to reoccur.  Mr. Velador’s counsel asked that the appeal be declared moot (most likely because he was concerned the appellate court would find that the trial court erred in granting mental health diversion). 

The Fourth Appellate District in Riverside, however, affirmed the trial court.  It reasoned that Penal Code § 1001.36 provided a trial court could grant diversion “at any time” leading up to attachment of jeopardy at trial or the entry of a guilty or no contest plea.  People v. Braden (2023) 14 Cal. 5th 791, 804, 308 Cal. Rptr. 3d 846, 529 P. 3d 1116.

Moreover, suspending the criminal proceedings to determine competency did not divest the trial court of jurisdiction.  It concluded, “If a person is competent, they can consent to diversion and waive their rights; if a person is incompetent, the court can nevertheless grant diversion.  Nothing in the statute suggests that there is something in the process of determining competency that would be required for the court to consider when determining whether to grant mental health diversion, and the procedure following the grant of diversion is identical whether the person is competent or incompetent to stand trial.”

We at Greg Hill & Associates naturally appreciate this ruling, as mental health diversion permits a person to “earn a dismissal,” which is always good, but more importantly, the person is court-ordered to receive mental health treatment that may help that person avoid future criminal conduct.