Pre-Trial Diversion Programs

Robert C. Phillips
DDA (Ret.)
September, 2021

Pen. Code §§ 1001.35 (New; Effective 6/27/18) & 1001.36 (New; Effective 6/27/18; and Amended; 1/1/2019 & 1/1/2020); Diversion of Individuals with Mental Disorders:

Summary:  New Chapter 2.8A in Title 6 of Part 2 of the Penal Code, entitled “Diversion of Individuals with Mental Disorders,” was enacted (AB 1810, SB 215), and subsequently amended, to grant pre-trial diversion in either a misdemeanor or felony case if:

1. The trial court is satisfied that the defendant suffers from a specified mental disorder (requires this evidence to be provided by the defense and requires that it include a recent diagnosis by a qualified mental health expert);

2. The trial court is satisfied that the mental disorder was a significant factor in the commission of the charged offense.

The court is permitted to review any relevant and credible evidence, including police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, and medical records);

3. A qualified mental health expert opines that the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to treatment;

4. The defendant consents to diversion and waives his or her right to a speedy trial;

5. The defendant agrees to comply with treatment; and

6. The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in existing P.C. § 1170.78, if treated in the community.

The court is permitted to consider the opinions of the district attorney, the defense, or a qualified mental health expert; the defendant’s violence and criminal history; the current charged offense; and any other factors the court deems appropriate.

Pen. Code §§ 1001.35 (New); Purpose:

The purpose of this chapter is to promote all of the following:

(a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

(b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.

(c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

Pen. Code § 1001.36 (New and Amended); Pretrial Diversion:

(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 paragraph (1) of subdivision (b).

(b) 

(1) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:

(A) 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.

(B) The court is satisfied that the defendant’s mental disorder was a significant factor in the commission of the charged offense. A court may conclude that a defendant’s mental disorder was a significant factor 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.

(C) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.

(D) The defendant consents to diversion and waives the defendant’s 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) of paragraph (1) of subdivision (a) of Section 1370 (i.e., P.C. § 1237(a)(1)(B)(iv)) and, as a result of the defendant’s mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial.

(E) The defendant agrees to comply with treatment as a condition of diversion.

(F) 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.

(2) A defendant may not (italics added) be placed into a diversion program, pursuant to this section, for the following current charged offenses:

(A) Murder or voluntary manslaughter.

(B) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.

(C) Rape.

(D) Lewd or lascivious act on a child under 14 years of age.

(E) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.

(F) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.

(G) Continuous sexual abuse of a child, in violation of Section 288.5.

(H) A violation of subdivision (b) or (c) of Section 11418.

(3) At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed 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.

(4) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.

(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 the defendant 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 (i.e. Welf. & Inst. Code § 5008(h)(1)(B)) A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.

(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 the defendant’s prior criminal record that the defendant 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 the defendant’s 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.

Note:  See also P.C. §§ 1370 (Amended) and 1370.01 (Amended), permitting a court to grant pre-trial mental disorder diversion pursuant to P.C. § 1001.36 to defendants who are found incompetent to stand trial.

Pen. Code §§ 1001.81, 1001.82 (New); Repeat Theft Crimes Diversion or Deferred Entry of Judgment Program:

A county prosecuting attorney, a city prosecuting attorney, or a county probation department are authorized to create a diversion or deferred entry of judgment program for persons who commit repeat theft offenses, to be conducted by either a prosecuting attorney’s office or a county probation department. 

A prosecuting attorney is permitted to enter into a written agreement with an offender to refrain from, or defer, prosecution on the following conditions:

1. Completion of program requirements such as community service or courses reasonably required by the prosecuting attorney; and

2. Making “adequate restitution or an appropriate substitution for restitution” to the establishment or person from which the property was stolen “at face value of the stolen property,” if required by the program. 

“Repeat theft offenses” is defined as being cited or convicted for misdemeanor or felony theft from a store or from a vehicle, two or more times in the previous 12 months, and failing to appear in court or continuing to commit these crimes after release or after conviction.

Case Law:

People v. Frahs (Sep. 28, 2018) 27 Cal.App.5th 784 (Supreme Court review granted): 

The court found that pre-trial diversion pursuant to P.C. 1001.36 is an ameliorating benefit and that therefore it should be applied retroactively to cases not yet final on appeal. The court conditionally reversed the defendant’s convictions and remanded the case for a mental health diversion eligibility hearing pursuant to P.C. 1001.36. In two places in the opinion, the appellate court is clear that even if the defendant is eligible for diversion the trial court is not required to grant diversion. The court states that if the trial court finds that the defendant suffers from a mental disorder, does not pose an unreasonable risk of danger to public safety and otherwise meets the other statutory criteria, “then the court may grant diversion.” In the disposition section of the opinion, the court states: “If the trial court determines that Frahs qualifies for diversion under section 1001.36, then the court may grant diversion.”

In re M.S. (Mar. 11, 2019) 32 Cal.App.5th 1177:

Minor/defendant who murdered her newborn baby was not eligible to be considered for referral to the mental health diversion program because the new mental health diversion law does not apply to juveniles, and, even if it did, murder is excluded.

People v. Cawkwell (May 1, 2019) 34 Cal.App.5th 1048: 

Because all relevant legislative activity regarding the legislature’s establishment of a diversion program for defendants diagnosed with qualifying mental health disorders occurred years after defendant committed his offenses, defendant could not have relied on the prospect of receiving diversion when he committed his offenses. Thus, the amendment eliminating eligibility for sex offenders like defendant was not an invalid ex post facto law.

People v. Craine (May 23, 2019) 35 Cal.App.5th 744:

The Legislature did not intend for Pen. C. § 1001.36, which authorizes, in lieu of criminal prosecution, the placement of certain alleged offenders into mental health treatment programs, to apply retroactively to offenders whose cases have already progressed beyond the stage of trial, adjudication of guilt, and sentencing.

In re J.M. (May 31, 2019) 35 Cal.App.5th 999:

Juveniles who are not charged as adults are not statutorily eligible for the mental health program under Pen C §§ 1001.35 and 1001.36. Disallowing adult-focused mental health diversion to juveniles promotes, rather than detracts from, the existing rehabilitative and mental health resources available under the juvenile court law, while properly maintaining the legislatively-enacted distinctions between the two systems.  Applying the rational basis standard, the Appellate Court concluded that defendant minor failed to demonstrate an equal protection violation regarding the denial of the benefits of the mental health diversion program to juveniles. The legislature could rationally devise and maintain a separate statutory scheme for juveniles that addresses their rehabilitative needs in delinquency proceedings and provides different criteria for potential diversion.

People v. McShane (June 14, 2019) 36 Cal.App.5th 245:

Defendant convicted of second-degree murder was not entitled to a remand for consideration of pretrial mental health diversion under this statute, which became effective while his appeal was pending, because when defendant committed the crime, he was not eligible for pretrial diversion, as the statute did not yet exist, and because he currently was not eligible for pretrial diversion due to the statute’s murder exclusion. Thus, the enactment of the murder exclusion did not change the consequences of his crime as of the time he committed it, and the fact (if it was a fact) that he was briefly eligible for pretrial diversion under the statute, as originally enacted, was irrelevant to the retroactivity analysis.

People v. Weaver (July 1, 2019) 36 Cal.App.5th 1103:

The statute was held to apply retroactively to defendant because although he was convicted and sentenced before the statute’s effective date, his conviction was not yet final on appeal.  Accordingly, remand of his case for a hearing on his diversion eligibility was appropriate because the record affirmatively disclosed that he appeared to meet at least one of the threshold requirements, namely, he suffered from a diagnosed mental health disorder.

However, the Legislature did not clearly signal its intent to overcome the Estrada presumption that this statute will apply to individuals who were convicted and sentenced before the statute’s effective date but whose cases were not yet final on appeal; the statute does not contain any language indicating that it otherwise limits or subsumes the ordinary presumption long established under the Estrada rule.

Note:  Per In re Estrada (1965) 63 Cal.2nd 740, “an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date.”

People v. Jefferson (Aug. 6, 2019) 38 Cal.App.5th 399:

Even if the appellate court were to assume, without deciding, Pen. C. § 1001.36, is retroactive, the record on appeal clearly indicated the trial court would not have found defendant eligible for mental health diversion. Thus, defendant was not entitled to remand for a mental health diversion eligibility hearing. Because the trial court clearly found, in another context, that defendant’s alleged mental health disorder was not a significant factor in his commission of the charged offenses, a remand for further consideration on this question would be futile.

People v. Burns (Aug. 14, 2019) 38 Cal.App.5th 776: 

The Appellate Court accepted defendant’s claim that the case should be remanded for mental health diversion proceedings under Pen. C. § 1001.36. The record could be read to support all six threshold eligibility requirements.

People v. Torres (Sep. 10, 2019) __ Cal.App.5th __ [2019 Cal.App. LEXIS 850]:

Defendant’s argument that P.C. § 1001.36 required his conviction be conditionally reversed to determine whether he qualified for mental health diversion was rejected in that section 1001.36 does not apply to defendants tried, convicted, and sentenced before June 27, 2018; section 1001.36’s effective date. 

People v. Jenkins (Sep. 18, 2019) __ Cal.App.5th __, __ [2019 Cal.App. LEXIS 889]:

The Court held (without explaining) that the newly enacted section 1001.36 and newly amended sections 667, subdivision (b), and 1385, subdivision (b), apply retroactively in this matter.

CDAA’s Comments:

Discretionary: 

This new chapter does not require a county to set up a pretrial diversion program for defendants with mental disorders and does not prohibit a county from creating a more restrictive mental disorder diversion program.  Per P.C. § 1001.35, one of the purposes of this new chapter is to allow local discretion and flexibility for counties in the development and implementation of diversion. And even if a county has a mental disorder diversion program, a judge is not required to place an eligible defendant into the program.

P.C. § 1001.36(a) provides that after considering the positions of the defense and prosecution, a court may grant pre-trial diversion if the defendant meets the specified requirements. And P.C. § 1001.36(h) uses this language: “…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.”

Disqualifiers:

When first effective on June 27, 2018, there were no disqualifiers specified for this mental disorder diversion program except for defendants who have antisocial personality disorder, borderline personality disorder, or pedophilia. SB 215 was signed into law by the Governor on September 30, 2018, and will be effective on January 1, 2019. It provides that a defendant may not be placed into a diversion program pursuant to this section for the following currently charged offenses: 1. Murder 2. Voluntary manslaughter 3. An offense, conviction of which would require P.C. 290 sex offender registration, except P.C. 314 (indecent exposure) 4. Rape 5. Lewd or lascivious act on a child under age 14 6. Assault with intent to commit rape, sodomy, or oral copulation in violation of P.C. 220 7. Rape or sexual penetration in concert in violation of P.C. 264.1 8. Continuous sexual abuse of a child in violation of P.C. 288.5 9. A violation of P.C. 11418(b) or (c) (using or employing a weapon of mass destruction)

Prima Facie Showing: 

The SB 215 amendments (effective January 1, 2019) also permit the court, at any stage of the proceedings, to require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. Provides that the hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. Provides that if a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate. 

Treatment and Maximum Period of Diversion:

Permits a defendant to be referred to inpatient or outpatient mental health treatment programs and limits the diversion program to two years. 

Restitution:

The SB 215 amendments (effective January 1, 2019) provide that upon request, the court shall conduct a hearing to determine whether restitution is owed to any victim as a result of the diverted offense and if it is, order its payment during the period of diversion. However, a defendant’s inability to pay restitution because of indigence or mental disorder cannot be grounds for the denial of diversion or a finding that the defendant has failed to comply with the terms of diversion. 

Diversion Failure and Modification of Diversion:

Authorizes the court to hold a hearing during the period of diversion to determine whether criminal proceedings should be reinstated, or whether treatment should be modified, or whether a conservatorship investigation should be initiated, if any of these circumstances exist: 1. the defendant is charged with a misdemeanor crime committed during pre-trial diversion and the crime reflects the defendant’s propensity for violence; 2. the defendant is charged with a felony committed during pre-trial diversion; 3. the defendant is engaged in criminal conduct rendering him or her unsuitable for diversion; or 4. based on the opinion of a qualified mental health expert, the defendant is either performing unsatisfactorily in the program, or, is gravely disabled and should be conserved.

Successful Completion of Diversion:

Provides that if a defendant performs satisfactorily in diversion, the court must dismiss the criminal charges at the end of the diversion period. A generous definition that is very favorable to defendants is provided. P.C. § 1001.36(e) permits a court to conclude that a defendant has performed satisfactorily if the defendant substantially complied with the requirements of diversion, avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan for long-term mental health care.

Miscellaneous:  

P.C. § 1001.36 does not provide any limitation on how many times a defendant could be diverted and says nothing about making divertees ineligible to own, possess, or control firearms or ammunition.  

This bill also amends P.C. §§ 1370 and 1370.01 to permit a court to grant pre-trial mental disorder diversion pursuant to P.C. § 1001.36 to defendants who are found incompetent to stand trial.

This bill also creates new W&I § 4361 to help fund pre-trial mental disorder diversion for defendants who are incompetent to stand trial. See the Welfare and Institutions Code Section of this Digest for more information.