Diversion on Misdemeanors
RC Phillips, DDA (Ret.)
October, 2021
P.C. § 1001.36: AB 1810
(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).
(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:
(1) The court is satisfied that the defendant suffers from 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. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. 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.
(2) The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. A court may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, 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, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense.
(3) In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.
(4) The defendant consents to diversion and waives his or her right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.
(5) The defendant agrees to comply with treatment as a condition of diversion.
(6) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(c) As used in this chapter, “pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
(1)
(A) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
(B) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
(2) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.
(3) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.
(d) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:
(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3) The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion.
(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A) The defendant is performing unsatisfactorily in the assigned program.
(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
Note: W&I Code § 5008(h)(1)(B) reads as follows:
(B) A condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist:
(i) The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person.
(ii) There has been a finding of probable cause on a complaint pursuant to paragraph (2) of subdivision (a) of Section 1368.1 of the Penal Code, a preliminary examination pursuant to Section 859b of the Penal Code, or a grand jury indictment, and the complaint, indictment, or information has not been dismissed.
(iii) As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner.
(iv) The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.
(e) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A 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, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (h). The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).
(f) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(g) The defendant shall be advised that, regardless of his or her completion of 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 that, notwithstanding subdivision (f), this section 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, as defined in Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(h) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(i) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.
L.A. DA Association’s Opinion:
A Scandalous Abuse of the Legislative Process
By Michele Hanisee
In a startling abuse of the legislative process, a budget clean-up bill has just been used to sneak in radical and never-debated changes in the criminal justice system. It allows a defendant suffering from a mental disorder to be granted pre-trial diversion and the charges later dismissed for any crime if a judge finds the disorder played a significant role in the crime and if a defendant has "substantially complied" with mental health treatment during the diversion period. In short, this new law allows diversion and the dismissal of charges for any crime, including those where a victim was killed or seriously injured.
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This massive change in law was slipped into AB 1810, the "Omnibus Health Trailer Budget Bill" for 2018. The purpose of trailer bills is supposed to be to implement provisions in the budget bill, not to write substantive new policy. However, as columnist George Skelton explained last year, these trailer bills are "created in the dark without much legislative or public scrutiny" and "mostly used now by Democrats for slipping through touchy new policy."
Under AB 1810, a defendant charged with any crime can get those charges dismissed if they convince a judge the mental disorder they suffer from played a "major" role in the charged crime; if a mental health expert says the symptoms motivating the criminal behavior would respond to treatment; and if the defendant undergoes "treatment" during a diversion period with no minimum time period and a maximum of two years. Incredibly, only the defense gets to submit a psychiatric report; the prosecution has no opportunity to rebut that report with their own report or have their own expert examine the defendant. Finally, the mental health treatment shall be deemed "satisfactory" and dismissal granted should a defendant "substantially comply" with the diversion conditions and commit no "significant" new crimes while in diversion, although what constitutes "substantial completion" or a "significant" crime is not defined in the bill.
There is an illusionary restriction included in the legislation that was lifted from Prop 47, making a defendant ineligible for diversion if a judge finds the defendant poses an "unreasonable risk" of committing the following specific crimes-oral copulation or lewd conduct on a child under 14, homicide, assault with a machine gun on a police officer or firefighter, or possession of a weapon of mass destruction.
Where did this midnight change in the law come from? It was from SB 215, a far less radical bill winding its way through the legislative process for the past 18 months and pending in an Assembly committee. That bill excluded any violent crimes and many felonies, limiting its provisions for diversion to what its authors called "low-level offenses" that were defined as "a misdemeanor or jail-eligible felony" under Realignment. Prosecutor consent for a number of its listed crimes and monthly reporting for treatment progress to the court, prosecutor, and defense attorney if the crime was one of the listed felonies were bill features. Although lacking formal opposition, changes to further restrict crimes eligible for the diversion program included a recent amendment removing driving under the influence offenses from the eligibility category. SB 215's current status per the legislature states the next scheduled hearing is "canceled at request of the author."
Of course, the cancellation occurred because the outlines of SB 215 were lifted and placed into the Omnibus Trailer Bill that was supposed to address issues such as Medi-Cal coverage and licensing fees. Gone in this new law are the protective guardrails in SB 215. There are no provisions limiting eligible crimes to low level offenses, requiring prosecutorial consent for diversion for many listed crimes, or mandating that there be regular reporting to the court and prosecutor of a defendant's progress during the diversion process.
In short, a deliberate and underhanded end run around the legislative process now allows charged criminals, including murderers, rapists, robbers, or arsonists, to avoid prosecution and punishment for their crimes by entering a short term "mental health treatment program" during which they only have to "substantially complete" the program and not commit any "significant" new crimes. Given the author of SB 215 claimed "one third of inmates" have a serious mental illness, simple extrapolation of this estimate means nearly one third of all crimes now are subject to dismissal after a short diversion process lasting no more than two years and requiring little of the defendant.
This misuse and abuse of the legislative process is not justice. Shame on the legislature!
Michele Hanisee is President of the Association of Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.
Association of Deputy District Attorneys, 515 S. Flower St., 18th Floor, Los Angeles, CA 90071
My Comments:
P.C. § 1001.36 (AB 1810); Blanket Diversion Program: California’s Legislature has sunk to a new low, enacting a broad diversion program without any public awareness, let alone debate, by hiding it in what was supposed to be a clean-up budget bill. Signed by the Governor on June 27th, new P.C. § 1001.36 is effective as of its filing with the Secretary of State; also June 27th. In a nutshell, here is what the new statute provides: A trial court is now empowered with the right to suspend any criminal case alleging any criminal offense—from the lowest misdemeanors to the most serious felonies—and put the defendant into a two-year pre-trial diversion program. Such a program will be available to any defendant who can provide evidence, including from mental health experts, that he or she suffers from a mental disorder “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.” There’s no provision for the prosecution to rebut such evidence via their own mental health expert. The fact that the defendant may have understood the consequences of his act, or the difference between right and wrong (the standard insanity elements), are irrelevant. There’s also no consideration given to the defendant’s victims, or to allow them any input. The trial court need only find that the “mental disorder played a significant role in (or ‘substantially contributed to’) the commission of the charged offense” to make diversion, instead of prosecution, available to the defendant. A defendant is disqualified if the court finds that the defendant “pose(s) an unreasonable risk of danger to public safety.” But otherwise, the court may put him (or her) into a diversion program and then, upon finding that the defendant performs “satisfactorily” and “has substantially complied with the requirements of diversion” within two years, the case is to be dismissed. The terms “satisfactorily” and “substantially complied with” are not defined. Thereafter, “the arrest upon which the diversion was based shall be deemed never to have occurred.” For a copy of this new legislation in its disturbing entirety, along with the Los Angeles D.A. Association’s opinion of it, let me know and I’ll send both to you
