Who Qualifies for
California Mental Health Diversion
Criminal Defense Mental Health Lawyer
Sacramento · San Francisco · San Jose · Los Angeles
Crimes and Mental Health Diversion
Far too many people with mental illnesses wind up in California’s criminal justice system. Although their criminal behavior is caused by untreated mental disorders, these people are put in jails and prisons, where their mental health only worsens. Both they and their families suffer, and these individuals don’t get the help they need to stop the cycle of criminal behavior.
The Good News
In 2018, California put forth a law (Penal Code 1001.36) to help keep people with mental illnesses out of prison.
The law created a program called Mental Health Diversion. This program provides treatment, not punishment, for people suffering with mental health issues.
In January 2023, the law was revised to give people with mental health issues even better access to the program.
VS.
The Reality
Ultimately, it’s the judge who decides whether or not you qualify for mental health diversion.
Even with a serious mental health condition, it’s possible you can be denied.
It’s important to have a skilled mental health diversion attorney, such as Kenneth Rosenfeld, on your side to advocate for you and increase your chances of winning.
The attorneys at The Rosenfeld Law Firm understand how to defend people with mental health issues. They have successfully convinced judges to grant mental health diversion in California cases, such as:
| County | Accused of | Secured | Instead of |
|---|---|---|---|
| San Francisco | Felony Battery | Mental Health Diversion | 8 yrs in prison |
| Sacramento | Attempted Murder of Police Officer | Mental Health Diversion | Life in Prison |
| San Diego | Felony Battery | Mental Health Diversion | 8 yrs in prison |
| El Dorado | Attempted Murder | Mental Health Diversion | Life in Prison |
| Stanislaus | Attempted Murder | Mental Health Diversion | Life in Prison |
| Monterey | Attempted Murder | Mental Health Diversion | Life in Prison |
| Solano | Mayhem | Mental Health Diversion | Life in Prison |
| Napa | Felony Assault | Mental Health Diversion | 3 yrs in prison |
| Santa Clara | Felony with Great Bodily Injury | Mental Health Diversion | 14 yrs in prison |
| Placer | Terrorist Threats | Mental Health Diversion | 8 yrs in prison |
| Riverside | Terrorist Threat to a Police Officer | Mental Health Diversion | 22 yrs in prison |
| Yolo County | Battery | Mental Health Diversion | 6 yrs in prison |
Our mental health attorneys set themselves apart by doing the following:
- Understanding every aspect of the legal process for diversion, including all the ways it can go wrong
- Keeping up on current case law and the latest state of the law. This way they can offer solid mental health diversion defense.
- Reading up on advances in mental health treatments and medications. This enables them to offer expert advice on treatment programs.
We’re ready to discuss your case. Contact us today.
California PC 1001.36 Is a Pretrial Criminal Diversion Program
- Diversion: Diverts people away from prosecution and into a treatment program
- Pretrial: Avoids a lengthy and expensive trial
- Benefits: Once a treatment program is completed, all charges against you are dismissed and your criminal record is sealed
How Do You Qualify for Mental Health Diversion in California?
Simply put, there are two criteria for how you qualify for mental health diversion in California:
- You must be eligible (e.g., have a mental disorder)
- A judge must agree you are a suitable candidate for a treatment program
Even when you meet the eligibility standards, the court must take other things into consideration, such as:
- The prosecution’s argument against diversion
- Your attorney’s argument for diversion
- Whether or not diversion meets your specific mental health needs
- The interests and safety of the community
The legal process can be thorny. An experienced mental health attorney, such as Kenneth Rosenfeld, is essential to ensure you qualify for mental health diversion.
Request a consultation with one of our skilled criminal defense attorneys.
How Do I Qualify for Diversion under California PC 1001.36?
For a judge to approve a treatment program, all diversion requirements must be met.
California Mental Health Diversion
| REQUIREMENTS | |
|---|---|
 |
1. A qualifying crime |
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2. A diagnosis of a mental disorder |
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3. Suitability for treatment |
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4. You waive your right to a speedy trial |
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5. You agree to fulfill treatment requirements |
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6. You are not a danger to public safety |
1. A Qualifying Crime
The crime for which you were arrested must be eligible for a mental health diversion program.
What types of offenses qualify for diversion?
- Many misdemeanor and felony offenses qualify for mental health diversion
What types of offenses do not qualify for diversion programs in California?
- The following serious crimes cannot qualify for mental health diversion in California:
- Murder
- Voluntary Manslaughter
- Rape
- Sex crimes that demand registration as a sex offender
2. A Mental Health Disorder Diagnosis
Under PC 1001.36, you need to have been diagnosed with an eligible mental illness. All qualifying mental disorders are listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
What are some typical qualifying mental disorders for diversion in California?
- Common conditions include bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder (PTSD)
What mental health disorders do not qualify for diversion in California?
- According to PC 1001.36, these disorders don’t qualify for diversion: anti-social personality disorder, borderline personality disorder, pedophilia.
How can I prove I have a mental disorder for diversion?
- A qualified mental health expert must provide a diagnosis of a mental disorder.
- Your attorney can help you find an expert to perform a mental health evaluation.
- Your diagnosis or treatment needs to have occurred within the last five years.
3. Suitability for Treatment
The mental health expert must believe two things:
- Your mental illness is treatable.
- You would respond well to a treatment program.
The expert will refer to arrest reports, medical records, and first-hand examinations.
The court must likewise believe a treatment program would be appropriate and effective.
4. You Waive Your Right to a Speedy Trial
You have a constitutional right to a speedy trial. Since diversion offers treatment instead of a trial, you will need to wave this right.
5. You Agree to Fulfill Treatment Requirements
If you are granted diversion, the court will tell you what kind of treatment program you must complete. It is necessary for you to agree to comply with the program and meet all its requirements.
A knowledgeable mental health attorney will ensure you get the right treatment program. The Rosenfeld Law Firm is thoroughly familiar with the latest treatments and can request the best one for you.
Contact us to learn more.
6. You Are Not a Danger to Public Safety
Before a judge grants mental health diversion, she or he must believe you don’t pose an unreasonable risk to public safety. This decision will be weighed out after considering certain factors:
- The qualified mental health expert’s opinion
- Your lawyer’s argument
- The prosecution’s argument
- Any past criminal or violent history you may have
- The seriousness of the crime you’re charged with
A district attorney will often argue that you are a threat to public safety. It’s crucial that your mental health attorney offers a convincing argument in your favor.
The Rosenfeld Law Firm has gotten mental health diversion for clients in Sacramento, San Diego, San Francisco, and several other counties. Request a consultation to learn how we would fight for you.
Qualifying for a Diversion Program in California
Frequently Asked Questions
Do I have to plead guilty to get mental health diversion in California?
No, you don’t need to enter a guilty or “no contest” plea to get diversion in California. Also, getting diversion in California is not an automatic admission of guilt. Since the person gets treatment instead of being prosecuted, the crime in question remains alleged.
Can my diagnosis of a mental disorder only come from a psychologist or psychiatrist?
A doctor’s diagnosis is not necessary. According to the amended law, a mental health expert can also be a case worker or social worker.
Still, a diagnosis from a psychologist or psychiatrist is very credible. If possible, you should choose a doctor for your examination.
Do I need to be diagnosed with a serious mental illness to qualify for a diversion program in California?
While severe conditions like bipolar disorder or schizophrenia are common for diversion, other “less serious” disorders might qualify. The following conditions are also listed on the DSM-5. One of them might qualify you for a mental health diversion program in California:
- Major Depressive Disorder (Depression)
- Alcohol Use Disorder
- Autism Spectrum Disorder
- Attention Deficit Hyperactivity Disorder (ADHD)
- Kleptomania
- And more
Do I have to prove my mental health condition caused the crime?
No, thanks to an amendment made to PC 1001.36 by Senate Bill 1223. The court no longer needs to be convinced that a mental disorder caused the alleged crime. It is up to the prosecution to try and convince a judge that your mental illness was not a factor.
Will I have to move into an inpatient facility to do my treatment program?
Not necessarily. There are a number of different kinds of treatment programs, and many are outpatient. Many judges give basic counseling sessions as diversion programs.
The kind of treatment program the court chooses will depend on a variety of factors related to your case.
Keep in mind that an experienced attorney will negotiate the best possible treatment.
Contact The Rosenfeld Law Firm to speak with an expert mental health attorney today.
How will I know if I am progressing in my mental health treatment program?
Your mental health treatment provider will monitor your progress. Regular reports will be sent to you, the prosecutor, and the judge. If a mental health expert believes you are not progressing, a hearing may be scheduled to modify your treatment program.
Will I be in the diversion treatment program for the rest of my life?
No. Mental health diversion programs in California cannot exceed two years. In fact, Senate Bill 1223 shortened the maximum length for misdemeanors down to one year. Treatment programs for felony offenses still have a maximum of two years.
What happens in California when you don’t complete your diversion treatment program?
If you fail to complete any part of your diversion program, you will face criminal proceedings.
If you commit another crime during diversion, your treatment might be terminated. A hearing will be scheduled to see if it’s necessary to reinstate criminal proceedings.
What happens when I finish my diversion treatment program?
To successfully complete your mental health diversion program, you must do the following:
- fulfill all requirements
- avoid committing a new crime
- arrange for ongoing mental health care
If you do these things, at the end of your diversion period, the charges against you will be dismissed. Your criminal record will be sealed.
What does it mean that mental health diversion “seals” my criminal record?
Generally, the sealing of your record means that it will be like your arrest didn’t happen. Your record will be clean for these purposes:
- Gaining employment
- Getting housing
- Receiving benefits
- Getting licenses and certificates.
In certain circumstances, your arrest will be visible:
- If you apply to be a police officer (or any kind of peace officer)
- In any future criminal case where mental health diversion might be sought
- For the purposes of providing continued mental health treatment
- To criminal justice agencies, in the ordinary course of duties
What does mental health diversion cost in California?
Besides your attorney fees, there are certain fees associated with mental health diversion. For example, a fee must be paid to the mental health expert for your mental disorder diagnosis.
The treatment program also costs money. There are some public resources to help pay for treatment.
A good mental health diversion attorney will work to get you a treatment program you can afford.
In spite of the costs, mental health diversion is still cheaper than a jury trial.
Find Peace of Mind with an Expert Mental Health Diversion Attorney
The mental health lawyers at The Rosenfeld Law Firm have gotten diversion in more than 12 California counties for clients suffering with mental illness. Many of these cases could have resulted in serious prison time. Instead, these clients were given the treatment they badly needed.
If your loved one suffers from a mental disorder and has been arrested for a crime in California, don’t despair. Get the right defense. Contact The Rosenfeld Law Firm as soon as possible.
Contact Us Today
Along with legal advice, The Rosenfeld Law Firm in Sacramento, California, offers experience and representation in other pertinent areas of practice including prison law, mental health law, appellate law, and federal criminal defense.
To speak with one of our California criminal defense lawyers, for more information about the company’s law firm, or to schedule a consultation, please contact us online or call the office directly: