Dismiss Your Case: Mental Health Diversion For Criminal Cases Los Angeles
California Law Allows Dismissal of Pending Criminal Cases in Several Situations. One of these situations is reserved for someone with mental health issues. That is, a person who has mental health issues can get his case dismissed. This is done through Mental Health Diversion which is found in California Penal Code 1001.36
Under California PC 1001.36 the court can divert many crimes as long as the defendant can establish the following criteria found in PC 1001.36(b)(1)):
- The defendant suffers from a mental health disorder as found in the most recent version of DSM. As of 2022, DMS 5 is being used.
- The mental health disorder was a significant factor in the commission of the offense. This is established through a doctor’s letter.
- A doctor opines that the defendant can get better with treatment. This is also established with a doctor’s letter.
- The defendant agrees to the diversion, consents to treatment, and waives time.
- The defendant will not pose an unreasonable risk or danger to public safety if treated in the community.
- The defendant is not charged with a list of certain offices such as murder, sex with a minor, etc.
There are exceptions to mental health diversion. For example, California Vehicle Code 23640 specifically does not allow DUI diversions. The California Court of Appeals held that because of VC 23640, DUI can be not diverted even if all conditions of PC 1001.36 are met. This of course creates absurd situations in which a person with mental health issues who gets a 1st offense DUI is treated more severely than a person who commits a very serious felony (such as arson or robbery).
The judge can’t offer diversion to Defendant. Your Los Angeles Criminal Defense Attorney must ask the judge to do it. – “the defense counsel or the defendant has to request diversion under PC 1001.36″. (People v. Banner)
CASE LAW
In the new great case of People v. Whitmill (86 Cal. App. 5th 1138), the Court of Appeal for the Second Appellate District (Los Angeles Appellate District) reversed the Trial’s Court Denial of a motion for judicial diversion. In this case, the defendant was charged with the following crimes:
- A violation of Penal Code 422, making criminal threats;
- a violation of Penal Code 29800(a)(1), an ex-felon in possession of a gun;
- and a violation of Penal Code 246.3(a), a negligent discharge of a firearm.
The Defendant was honorably discharged from the military and there was diagnosed with sexual trauma and post-traumatic stress disorder as a result of that sexual trauma. The defendant, unfortunately, had some substance dependency issues to deal with his psychiatric symptoms and suffered from “severe mental illness” according to his doctor. His doctor also said that “any risk to the community will be mitigated by treatment” and that the defendant “fits the eligibility criteria for mental health diversion under PC 1001.36“. Los Angeles District Attorney’s Office opposed Defendant’s motion for mental health diversion based on the belief that if the motion is granted, the defendant will create an “unreasonable risk to public safety“. This position corresponds to prong 6 of the diversion statute (subdivisions F). The trial court agreed with the Los Angeles District Attorney’s position and denied the mental health diversion motion. The trial court noted a case of People v. Moine 62 Cal.App.5th 440, where the mental health diversion was granted because medical experts opined that the defendant was at a “low risk of future assaults” and ruled here ruled that if treated in a community, Defendant is likely to commit a “super-strike” offense. The Court of Appeal reversed the trial court's order rejecting the logic that the defendant is more likely to commit another crime because he is treated in a community instead of being convicted of a crime. The Court of Appeal further held that the trial court is not allowed to consider past grants of probation or the fact that the defendant has suspended prison sentence as a reason to deny diversion and that the court is not allowed to rely on California Rule of Court sentencing objectives found in 4.410 to rule on the Mental Health Diversion and instead must rely on PC 1001.35 to consider the primary purpose of mental health diversion. (People v. Quaklinbush 79 Cal.App.5th 879, 888). The court specifically noted that the defendant ran away from the confrontation, surrendered to law enforcement, threw away the gun, fired a single shot from the gun into the air (thus using it as a bullhorn), and has no prior violent convictions – all of which indicate that he is not a violent individual. Overall, the case of Whitmill is a very good case to rely on if you are trying to get a mental health diversion in Los Angeles Criminal Court.
Los Angeles criminal Defense Attorney in his motion for mental health diversion under PC 1001.36 should also mention Wade, which has very helpful language that prohibits the court to use facts from the offense as a reason to deny diversion (such as high blood alcohol level etc).
Another helpful case that must be read and distinguished in any mental health diversion motion by your Los Angeles Criminal Defense Attorney is People v. Pacheco (2022) 75 Cal.App.5th 207.
Lastly, in January of 2023, a new law was adopted in California.
PC 17.2 says:
(a) It is the intent of the Legislature that the disposition of any criminal case use the least restrictive means available.
(b) The court presiding over a criminal matter shall consider alternatives to incarceration, including, without limitation, collaborative justice court programs, diversion, restorative justice, and probation.
(c) The court shall have the discretion to determine the appropriate sentence according to relevant statutes and the sentencing rules of the Judicial Council.
Because of this new statute, a Los Angeles criminal defense attorney should, in his motion, mention the new statute and how the courts now should grant diversions when defendants are eligible!
Sarmiento v. Sup. Court 98 Cl.App.5th 882 (San Diego)
In Sarmiento, a defendant was charged with attempted robbery after he handed a liquor store clerk a note demanding “the money” ( a violation of Penal Code section 211). The defendant filed a motion for mental health diversion, and the trial court denied it. The Court of Appeal reversed because the trial court relied on reasons impermissible under the statute. The trial court denied MHD because it believed that (1) the recommended drug treatment program would not meet the defendant’s specialized mental health treatment needs and (2) that the defendant is likely to commit a “super strike” offense in the future. Bu there was no basis for such an opinion, and the Court of Appeal reversed.
The Sarmiento decision is one of the first Appellate decisions published after the change in the PC 1001.36 (Jan 1, 2023). Based on the statute, there are 3 main criteria to qualify for MHD: (1) mental health disorder is a significant factor in the commission of the offense, (2) in the opinion of a qualified mental health expert, the defendant’s mental health disorder would respond to treatment, and (3) the defendant would not pose an unreasonable risk to public safety.
Importantly, the change in the statute removed court “satisfaction” requirements, thus creating a presumption that the defendant is eligible.
People v. Harlow 113 Cal.App.5th 485 (Riverside)
Harlow was charged under Penal Code §245(a)(1) for assault with a deadly weapon after striking a victim with a skateboard, causing injuries that led to a §12022.7 (GBI) enhancement. The incident occurred in 2020. Nearly three years later, Harlow filed a mental health diversion (MHD) motion under Penal Code §1001.36, supported by a recent diagnosis that included PTSD, Major Depressive Disorder, and Generalized Anxiety Disorder.
The court acknowledged that Harlow suffered from qualifying mental health disorders, which normally creates a presumption of eligibility for diversion. However, the court ultimately denied the motion, focusing incorrectly on whether the diagnosis predated the crime rather than whether there was a causal connection between the disorder and the offense. The ruling also emphasized that mere argument is not evidence, and the prosecution must present clear and convincing evidence to rebut eligibility. In Harlow’s case, they failed to do so.
If you or a loved one is facing serious criminal charges and may qualify for mental health diversion, call our Los Angeles Criminal Defense Attorney to speak directly with an experienced and affordable criminal attorney in Los Angeles who understands how to fight for your rights and protect your future.
For case-specific analysis of your criminal case in Los Angeles, please call Los Angeles Criminal Defense Attorney at our office directly at (818) 921-7744 or the attorney’s cell phone at (323) 464-6424.
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