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What Should Be in a Motion for Mental Health Diversion?

First and foremost, California Rules of Court, rules 3.1110 and 3.1113(a) through (m), should be reviewed by anyone unfamiliar with the general format and content of a motion, especially when filing a Motion for Imposition of Mental Health Diversion under Penal Code § 1001.36.
The Gist of this Article: Besides separately addressing each of the six requirements for mental health diversion, a motion for mental health diversion must follow the California Rules of Court applicable to any motion.  The following article provides additional suggestions for writing a successful motion.
In stating the relief sought, the notice of the motion should be clear that defendant requests that the court suspend proceedings for up to two years to allow defendant to received mental health treatment from a specified doctor.  The notice should state that defendant agrees to waive his or her right to a speedy trial as a condition of such diversion.

As to the memorandum of points and authorities, we recommend that the moving papers first present a very short introduction of the type of case, if restitution is an issue, the mental health condition at issue, the doctors who has examined and diagnosed defendant and a statement that defendant agrees to such treatment.

The next part of the motion should include a statement of the facts, including references to a declaration of defendant and any other witness needed, as well as a diagnostic report of the treating psychiatrist or psychologist.

Torrance Courthouse

The third part of the motion should present an overview of what Penal Code § 1001.36 states and a short discussion of recent reported decisions of importance under mental health diversion.  This should probably include an explanation that mental health diversion is not available to defendants who suffer from anti-social personality disorder, borderline personality disorder or pedophilia.  Defendants charged with murder, manslaughter and most sex offenders are also excluded.

Courts have also added their interpretation of the statute.  For example, the Riverside branch of the Fourth Appellate District has held that DUI cases are not eligible for mental health diversion.  See e.g., Moore v. Superior Court (2020) 58 Cal. App. 5th 561, 272 Cal. Rptr. 3d 571; see also Tellez v. Superior Court (2020) 56 Cal. App. 5th 439 (also Fourth Appellate District).  However, the California Supreme Court has not addressed the eligibility of a DUI defendant for mental health diversion.

The memorandum of points and authorities should then explain how defendant is suitable for mental health diversion by methodically addressing each of the six criteria for the court to grant mental health diversion.

The first issue is whether the defendant suffers from a mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM), which should be shown by a diagnosis report from a psychologist or psychiatrist who has met with defendant and considered his or her medical history and current complaints. 

Second, and perhaps the most difficult issue to establish, is the psychologist’s or psychiatrist’s opinion that defendant’s mental disorder was a significant factor in the commission of the offense.  This requires that the doctor be familiar with the police report and makes the connection between the mental health of defendant at the time of the incident and the crime.

Third, the doctor should state, again often in a report attached as an exhibit to the motion, that the defendant’s condition would respond to treatment.  The judge needs to know that if the case is assigned to mental health diversion, that the treatment of defendant would help defendant overcome or manage his or her condition so similar crimes would not be committed by defendant in the future due to the condition.

Fourth, defendant must represent to the court that he or she agrees to such treatment and to waive his or her right to a speedy trial.  This can be established in the motion through a declaration from defendant attached to the motion.

Fifth, the defendant must agree to comply with the terms of diversion and treatment as a condition of diversion.  This can be established through a declaration from defendant as well.

Lastly, the judge must find that if defendant is granted mental health diversion, he or she will not pose an unreasonable risk of danger to the public if released in the community.  Unreasonable risk of danger to public safety means the defendant will likely commit a new violent felony within the meaning of Penal Code § 667(e)(2)(C)(iv), which means certain sex offenses, homicide, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction or any other serious or violent felony punishable by life in prison or death.  See People v. Moine (2021) 62 Cal. App. 5th 440 (a Torrance Superior Court case).

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