What is the Pretrial Diversion program?
California Senate Bill 215, which was signed into law in 2018, enables the court to grant a pretrial diversion program for defendants with a mental disorder that have been accused of committing specific crimes. This means that instead of going to prison, defendants who meet the criteria for the program will receive care and treatment for their mental illness. If the defendant successfully completes the program, the arrest related to the original charges will be sealed and destroyed.
To be eligible for the program, a defendant must meet these requirements:
- The defendant suffers from a mental health disorder as specified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Any diagnosis can qualify except for the ones that are prohibited by statute, including Pedophilia, Antisocial Personality Disorder, and Borderline Personality Disorder.
- The mental health disorder played a significant role in the crime for which the defendant is charged with.
- A qualified mental health professional must evaluate and conclude that the defendant will benefit from seeking mental health treatment.
- The defendant must agree to participate in the mental health diversion program and waive their right to a speedy trial. During the mental health diversion program, the trial process is put on hold until they complete the mental health treatment program.
- The defendant agrees to comply with all the requirements of the mental health treatment program.
- The court determines that the individual will not pose “an unreasonable risk” to public safety, as defined in Section 1170.18. This will be determined by the judge after reviewing the opinions of medical experts, mental health professionals, the attorneys involved in the case, medical records, or any other factors that they believe are relevant.
Defendants who have committed the following crimes are not eligible for this program:
- Murder or voluntary manslaughter.
- An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
- Lewd or lascivious act on a child under 14 years of age.
- Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
- Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
- Continuous sexual abuse of a child, in violation of Section 288.5.
- A violation of subdivision (b) or (c) of Section 11418.
To determine eligibility for the program, a comprehensive evaluation completed by a mental health professional will include:
- A clinical interview with the defendant.
- A review of relevant medical, legal, and other collateral documents.
- Findings of administered psychological and neuropsychological tests including General intellectual abilities, Executive functioning, Attention and concentration, Memory impairment, Personality functioning, Psychological diagnoses and Violence/risk assessment to determine if the defendant poses a risk of danger to the community.
How long will the mental health diversion program take? The court may grant mental health diversion for a period no longer than 2 years.
What will the mental health diversion program consist of? The treatment program can consist of either inpatient or outpatient treatment, including alcohol or drug treatment.
What happens when a defendant completes the mental health diversion program? If the defendant completes the treatment, the court will dismiss the charges and the case will be sealed.
Who pays for the mental health diversion program? The treatment can be paid for by either private or public funds.
What is the mental health provider responsible for during the mental health diversion program? The provider must offer regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.
What happens if the defendant fails to comply with the requirements of the mental health diversion program? If the defendant does not comply with the treatment program, the mental health diversion program can be terminated, and criminal proceedings will be reinstated.
Additional situations that can result in the reinstatement of criminal proceedings include:
- The defendant is charged with a new misdemeanor that reflects a propensity for violence.
- The defendant is charged with a new felony.
- The defendant engages in criminal conduct that makes them unsuitable for diversion.
How will the court determine if the defendant has successfully completed the mental health diversion program?
If the defendant is able to complete the treatment program, the court will dismiss the charges. The court may conclude that the defendant has performed satisfactorily if the defendant has:
- Substantially complied with the requirements of diversion.
- Has avoided significant new violations of law unrelated to the defendant’s mental health condition.
- Has a plan in place for long-term mental health care.
Will the charges stay on the defendant’s record after completing the mental health diversion program?
After the mental health diversion program is completed, the arrest related to the original charges will be sealed and destroyed. It will be as if the arrest and prosecution never happened. The arrest cannot be used to deny the defendant any employment, benefit, license, or certificate.
There are several exceptions when sealed arrest records and records of successful participation in the diversion program can be used:
- The defendant must disclose the arrest if they apply to be a peace officer. The California Department of Justice will also disclose the arrest if they apply for a peace officer position.
- Criminal justice agencies may access and use sealed arrest records in the ordinary course of their duties.
- The court may use past records in determining whether to grant mental health diversion in any future criminal cases.
- The records may be used as necessary to provide continued care and treatment to the defendant.
Pretrial Diversion with Medens Health
Medens Health believes that those suffering from a mental illness deserve access to quality care. We offer defendants a second chance by helping them overcome the mental health challenges that played a role in the crimes they committed. Our qualified mental health experts can evaluate defendants to determine if they are eligible for the pretrial diversion program. For those who are, we offer continuing care, with a treatment program designed to rehabilitate them in the timeline mandated by the court. Reach out to us by phone at (833) 624-5400 or by filling out our online contact form.