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Mental Health Diversion: Must Judge Consider 1001.35?

As the reader of this article may be acutely aware or at least suspect, many crimes arise from poor mental health combined with poor problem solving abilities.  We all face challenges and disappointments, but how we respond to these can be the difference between legal conduct and criminal behavior.

Some people grow up in an unstable environment and never have the opportunity to develop problem solving skills.  The person then may develop a mental illness that leads to repeated criminal conduct, yet that mental illness can be treated and, if treatment is successful, the person may avoid criminal conduct in the future and break that pattern.

This is the earnest hope the legislators in California had in enacting Penal Code § 1001.36, which provides for mental health diversion.  Legislators passed similar laws addressing criminal conduct committed by current or former military servicemembers who suffer from a service-related mental health condition. 

Penal Code § 1001.35 summarizes this, stating that the primary purposes of the legislation are to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health services.

Diversion can be “viewed as a specialized form of probation . . . [that] is intended to offer a second chance to offenders who are minimally involved in crime and maximally motivated to reform . . . “ People v. Superior Court (On Tai Ho) (1974) 11 Cal. 3d 59, 66.

The sad case of Cristina Romero Qualkinbush exemplifies how a judge should implement this new legislation. 
Qualkinbush was born in Russia.  She was exposed to alcohol in utero and was raised for the first four years of her life in a dysfunctional family that “exposed her to extreme forms of torture and physical abuse.”  Her family abandoned her at age four.  She then lived in an orphanage where staff locked her in a closet for extended periods of time.

At age eight, an American couple adopted her and brought her to the United States.  Qualkinbush’s adoptive father began sexually abusing her shortly after her adoption.  She suffered sexual abuse twice a week for approximately four years until her adoptive father died.

As a juvenile, she exhibited behavioral problems in school including threatening staff and engaging in self-injurious behavior and altercations with her peers.  She once tried to strangle her adoptive mom.  She was in and out of juvenile court for an extensive array of crimes.

However, she eventually began treating for her mental condition and improving.

At age 18, however, she got sick and stop taking her medication.  In September 2020, at age 20, she got drunk for the first time with a friend and returned home to her home with her adoptive mother. 

An argument arose and Qualkinbush threw a pair of scissors at her mother, creating a laceration to her mother’s thigh that requiring suturing.  Police came and she struggled with them, yelling, hitting her head against objects kicking and spitting at a police officer.

A felony complaint was filed in the San Diego Superior Court against her for willful cruelty to an elder (Penal Code § 368(d)(1)), assault with a deadly weapon as a strike (Penal Code §§ 245(a)(1), 1192.7(c)(23)); vandalism causing more than $400 in damage (Penal Code 594(a), (b)(1)); and misdemeanor battery upon a police officer (Penal Code § 243(b)).  
Qualkinbush filed a motion for mental health diversion, which the judge denied because he regarded the offenses as not appropriate for diversion and that the court needed to deter her from ever doing this again in the future.  The judge did not consider Penal Code § 1001.35.

She then pled guilty to felony elder abuse and misdemeanor battery upon a peace officer.  The prosecution agreed upon three years of formal probation with one year in a residential mental health program.  Upon successful completion of probation, the felony would be reduced to a misdemeanor.

Qualkinbush then appealed to the Fourth Appellate District the trial court judge’s denial of mental health diversion, arguing that the judge abused his discretion by not considering Penal Code § 1001.35.

The Fourth Appellate District agreed, citing to Wade v. Superior Court (2019) 33 Cal. App. 5th 694, where the Sixth Appellate District found a trial court judge abused his discretion in denying military diversion when the judge did not consider 1001.35. 

We present this summary for really one purpose and that is to always cite to Penal Code § 1001.35 in any motion for mental health diversion to remind the judge about the statutory principals and purposes of the mental health diversion statute.  Wade, supra, 33 Cal. App. 5th at 718.

For more information about mental health diversion, please click on the following articles:
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