Mental Health & the Criminal Courts

Unlike physical conditions, mental illness often manifests through behavioral changes that others may interpret as criminal conduct, or may contribute to behavior that violates the law. California law increasingly reflects a shift in criminal justice policy to address the stateís mental health crisis by promoting treatment, rehabilitation, and reintegration into the community.

Attorneys at Nolan Barton Olmos & Luciano have successfully obtained mental health pretrial diversion and participation in mental health treatment courts on behalf of their clients in cases involving drugs, domestic violence, theft, and crimes of violence.

Mental Health Pretrial Diversion

California law recognizes that diversion programs can reduce recidivism and improve public safety by connecting individuals with mental disorders to appropriate treatment rather than traditional criminal prosecution. (Penal Code section 1001.35.) Mental health diversion may be available in misdemeanor or felony cases unless the charged offense falls within the statuteís enumerated exclusions, including certain homicide and sex offenses.

Penal Code section 1001.36 provides a discretionary pretrial diversion procedure for individuals charged with qualifying criminal offenses who suffer from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) and whose symptoms can be abated with treatment. (Penal Code sections 1001.36(b)(1); 1001.36(c)(1).)†

The court must be satisfied that the defendantís mental disorder was a significant factor in the commission of the charged offense. If the defendant has received a qualifying mental health diagnosis within the previous five years, the court must presume that the disorder was a significant factor in the commission of the charged offense, unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendantís involvement in the alleged offense. (Penal Code section 1001.36(b)(2).)

The word ìdiversionî refers to the postponement of criminal prosecution, either temporarily or permanently.†The program is voluntary and conditioned on the defendantís agreement to undergo treatment. Diversion can last for up to two years, during which time the defendant participates in community-based treatment, either in a residential setting, outpatient program, or a combination of both. (Penal Code section 1001.36(f)(1).)

The statutory language is permissive in that the court may, but is not required to, grant diversion to an eligible and suitable defendant. The burden rests on the defense to provide evidence supporting diversion, including proof of the mental disorder and a recommended course of treatment that will meet the specialized treatment needs of the defendant while protecting public safety and the interests of the community. (Penal Code sections 1001.36(c); 1001.36(e).)

If the defendant is successful in diversionómeaning that the individual has substantially complied with the requirements of the program, avoided new law violations, and implemented a plan for long-term mental health treatmentóthen the charge is dismissed, the arrest is deemed never to have occurred, and access to the record of arrest is restricted (with a few specific exceptions). (Penal Code section 1001.36(h).)

Mental Health Treatment Court

In some California counties, collaborative mental health courts have been established to address the behavioral health needs and underlying mental health issues of individuals entangled in the criminal justice system.† These programs provide an alternative to traditional courts, emphasizing a treatment-oriented and accountability-based approach to encourage continued mental health treatment and reentry into the community.

Mental health courts facilitate access to community resources and are staffed by probation officers and mental health providers, including clinicians, social workers, case managers, and members of other community-based organizations.† Eligibility is determined by probation, the prosecutor, and the court, often in consultation with county behavioral health or other mental health professionals.† Participation is voluntary, and acceptance into the program depends on the defendantís willingness to receive psychiatric treatment as a condition of probation following the entry of a plea of no contest or a guilty verdict at trial.

Upon successful completion of the Mental Health Treatment Court program, the court will dismiss the case pursuant to Penal Code section 1203.4, which releases the individual from many of the penalties and disabilities associated with the conviction. However, some consequences such as firearm restrictions, prior-offense enhancements, and immigration consequences may still apply. (Penal Code section 1203.4(a).)