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Mental Health Diversion for CA Sex Crimes (PC 1001.36)

Mental health diversion is a legal procedure in California criminal court that allows a criminal defendant to avoid prosecution for her crime if her criminal conduct is reasonably related, and the result of, a recognized mental health disorder, and she is willing and able to abide by certain conditions of the court.

Information on mental health diversion in California is found in penal code section 1001.36. The following is a summary of mental health diversion & PC 1001.36 as it applies to California sex crimes. For further information, contact our sex crimes criminal defense attorneys.

To start, “diversion,” in the context of criminal law and procedure, means to avoid, or circumvent, criminal prosecution, so long as the defendant qualifies for diversion, and only if the defendant is willing to abide by ‘diversion terms,’ such as supervision by the court, enroll in classes, keep medical appointments, remain free from criminal conduct, etc.

For purposes of “mental health” diversion, the court will not grant the defendant's diversion request unless it finds that the defendant’s criminal conduct was related to her mental health issues, and that she is 'suitable' for the program. The court must also consider other factors in the defendant’s personal history and circumstances of the case before the court uses its discretion in allowing a criminal defendant to enroll in diversion.

Dismissal of Criminal Charges: If the defendant is allowed to enter mental health diversion pursuant to PC 1001.36, and the defendant successfully complete the mental health diversion requirements, then the defendant’s criminal charges will be dismissed.

Note: Mental health diversion is only one type of diversion program in California. Other diversion programs also exist and may be a better option for the defendant depending on the circumstances of the defendant and the facts of the case, such as Judicial Diversion (PC 1001.95), Military Diversion (PC 1001.80), Drug Diversion (PC 1000), etc.

Also, mental health diversion might apply to many different types of crimes, not just sex crimes; however, for purposes of this article, the focus is on the application of PC 1001.36 as it applies to California sex crimes.

PC 1001.36 Law

According to PC 1001.36(a), ‘On an accusatory pleading alleging the commission of a misdemeanor or felony offense…, the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant… if the defendant satisfies the eligibility requirements for pretrial diversion…, and the court determines that the defendant is suitable for that diversion….' (PC 1001.36 Abbrev.).

Note: Mental health diversion is available for most misdemeanor and felony crimes, unlike Judicial Diversion (PC 1001.95), which is only available for misdemeanor crimes; however, other requirements under PC 1001.36 will make most felony sex crimes ineligible for mental health diversion (See below).

Mental Health Diagnosis Required

Per PC 1001.36(b)(1), for the judge to consider mental health diversion for the defendant, the court must find that ‘the defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia….’

Note: Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert.

Expert’s Opinion: In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.

Significant Factor Requirements

Per PC 1001.36(b)(2), before the defendant is admitted to mental health diversion, the court must find that ‘the defendant’s mental disorder was a 'significant factor' in the commission of the charged offense.

In other words, per PC 1001.36, the court must find that the defendant was diagnosed with a recognized mental health disorder, and that the mental health disorder was a significant factor in the commission of the offense.

Note: The court will not find that a defendant’s crime was the result of a mental health disorder where there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense (PC 1001.36(a)(2) Abbrev.).

Also, ‘a court 'may consider any relevant and credible evidence… when determining whether a criminal defendant should be granted mental health diversion…, including, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.'

Suitability Requirement

Per PC 1001.36(c), even if the criminal defendant suffers from a recognizable mental health disorder, and the mental health disorder was a ‘significant’ factor in the commission of the crime, the court must still find that the criminal defendant is ‘suitable’ for mental health diversion (PC 1001.36(c) Abbrev.).

In other words, the court must find that the mental health diversion requirement would be responsive to the mental health treatment of the defendant (i.e., would the mental health treatment help to resolve the issues that lead to the defendant’s criminal behavior in the first place).

Defendant Must Consent: A mental health diversion program is not appropriate unless the defendant consents and agrees to the diversion requirements and she is willing to ‘waive’ her speedy trial rights so that diversion has time to process.

Of course, if the defendant is mentally incompetent to the point where she is unable to consent or agree to mental health diversion, then the judge cannot order mental health diversion for the defendant.

Public Safety Concerns: The court will not grant mental health diversion to a criminal defendant that reasonably poses a ‘substantial risk’ of danger to the public. This is because many mental health diversion treatment programs include outpatient treatment plans, where the defendant remains in the public, or inpatient programs where the defendant is in close contact with the general public.

In opining whether the criminal defendant reasonably poses a ‘substantial risk’ of danger to the judge may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate' (PC 1001.36(c)(4) Abbrev.).

Ineligible PC 1001.36 Crimes

Per PC 1001.36(d), mental health diversion is not available in certain types of cases, including cases where the defendant is charged with murder, voluntary manslaughter, or for any sex crime where the defendant is ordered to register as a sex offender pursuant to PC 290 upon conviction (except indecent exposure charged under PC 314).

This means that many sex crimes, regardless of whether they are classified as felonies or misdemeanors, will not qualify for mental health diversion (PC 1001.36(d) Abbrev.). Non-qualify sex crimes include, but are not limited to, the following, regardless of whether the crime is charged as a felony or a misdemeanor:

PC 288(a) Lewd Act Upon a Child Under 14

PC 287 Oral Copulation Crimes

PC 286 Sodomy Crimes

PC 289 Sexual Penetration Crimes

PC 288.5 Continuous Sexual Abuse of Child

PC 261 Rape by Force or Fear

PC 269 Aggravated Sexual Assault of Child

PC 264.1 Rape in Concert (Gang Rape)

PC 220 Sexual Assault

PC 243.4 Sexual Battery

PC 288(b) Lewd Act by Force on Child

PC 311.11 Possession of Child Porn

PC 647.6 Annoy or Molest a Minor

PC 288.7 Sexual Conduct with Child Under 10

PC 209(b) Kidnap to Commit a Sex Crime

PC 266h Pimping

PC 285 Incent

PC 236.1 Human Sex Trafficking

Sex Crimes Eligible for PC 1001.36

Sex crimes that are eligible for mental health diversion, include:

PC 647(b) Prostitution

PC 261.5 Statutory Rape

PC 314 Indecent Exposure

PC 288.2 Distribute Non-Sex Lewd Material

PC 315 Keeping a House of Il Repute

PC 647(j)(4) Revenge Porn

PC 647(j)(2) Video Person in Undergarments

PC 647(j)(1) Peek into Bathroom / Dressing Room

PC 647(a) Engage in Lewd Conduct in Public

PC 318 Refer Client to Prostitute (Capping)

PC 310.5 Contract to Pay Minor for Sex

PC 311.6 Engage in Live Obscene Conduct

PC 290(b) Fail to Register as Sex Offender

PC 289.6 Sex Offender on School Grounds

PC 286.5 Sexual Assault of Animal

PC 647(b)(3) Solicit Minor for Prostitution

Mental Health Diversion Length

The period during which criminal proceedings against the defendant may be ‘diverted’ is limited as follows:

If the defendant is charged with a felony, the period shall be no longer than two years,

If the defendant is charged with a misdemeanor, the period shall be no longer than one year.

Reinstatement of Criminal Proceedings

After a criminal defendant is granted mental health diversion, the court may revoke that permission if the defendant is either 1) charged with additional crimes, 2) becomes unsuitable for mental health diversion, 3) not performing well in the assigned program, or 4) has become gravely disabled, and more.

To reinstate criminal proceedings and revoke mental health diversion, the defendant, the prosecuting attorney, and the mental health expert treating the defendant must have notice of the court’s intent to revoke mental health diversion and reinstate criminal proceedings.

Note: Additional requirements and procedures for mental health diversion admission and revocation pursuant to PC 1001.36 may apply.

Successful Completion of Mental Health Diversion

Upon successful completion of mental health diversion, the criminal defendant's admission to a mental health program 'may not be used against her in a way that results in denial of employment, benefit, license, or certificate' (PC 1001.36(i) Abbrev.).

However, the criminal defendant shall be advised that, regardless of the defendant’s completion of mental health diversion, both of the following apply: 1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request, and 2) ‘successful mental health diversion…’ does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer (PC 1001.36(j)(1) Abbrev.).

Note: An order to seal records pertaining to an arrest made pursuant to PC 1001.36 has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests.

For more information on mental health diversion, or CA penal code section 1001.36, as it applies to CA sex crimes, contact our sex crimes criminal defense attorneys today for a free consultation.

Our award-winning and successful sex crimes defense attorneys have handled hundreds of misdemeanor and felony sex crimes in the Inland Empire, including PC 288(a) Crimes [Child Molestation], PC 311 Crimes [Possession of Child Pornography], PC 287 Crimes [Oral Copulation], PC 243.4 Crimes [Sexual Battery], PC 647(b) Crimes [Prostitution], PC 290.018 Crimes [Fail to Register], and many more.

Our sex crimes criminal defense attorneys represent criminal defendants in the Inland Empire and surrounding areas, including the cities and courts of Redlands, Rancho Cucamonga, Fontana, Rialto, Yucaipa, San Bernardino, Riverside, Banning, Ontario, Victorville, Hesperia, Highland, Chio, Upland, and more.


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Mental Health Diversion for Sex Crimes (PC 1001.36)


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