Mental Health & the Criminal Courts

Unlike physical conditions, mental illness can manifest in the form of a change in one's behavior, which can sometimes be associated with criminal activity. Current legislation reveals a shift in California's justice reform efforts to address the state's mental health crisis by promoting treatment, rehabilitation, and reintegration into the community. 

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

Mental Health Pretrial Diversion

Penal Code section 1001.36 provides a discretionary pretrial diversion procedure for individuals charged with a qualifying criminal offense who suffer from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) (with certain exclusions) 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 defendant's mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a qualifying mental disorder within five years, then the court must find the defendant’s mental 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 defendant’s involvement in the alleged offense. (Penal Code section 1001.36(b)(2).)  

The word “diversion” refers to the postponement of criminal prosecution, either temporarily or permanently. The program is voluntary and conditioned on the defendant’s agreement to undergo treatment. Diversion can last for up to two years, during which time the defendant is treated in the community, 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 of persuading the court to grant diversion rests on the defense to provide evidence 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 diversion—meaning 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 treatment—then 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 were 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 rewards-driven 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.  Participation is voluntary, and acceptance into the program depends on the defendant's 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 charge, releasing the individual from all penalties and consequences of the conviction with a few limited exceptions. (Penal Code section 1203.4(a).)