Pretrial Mental Health Diversion

It is an established fact that many crimes are committed by individuals with a mental illness or disorder and the crime itself is a product of the illness. In an effort to address this reality, the California Legislature enacted a law in 2018 that provides treatment as an alternative to punishment for individuals who have been charged with certain crimes and who suffer from a serious mental disorder. This option is not available to all defendants who suffer from mental illness or mental disorder but does give many the opportunity to request the court defer further criminal proceedings to allow the defendant to enter treatment for the mental disorder. The law places very specific parameters around those who are eligible for this diversion and requires that the defendant establish to the satisfaction of the court that he or she is eligible for the diversion.

The pretrial mental health diversion law, now found in Penal Code sections 1001.35 and 1001.36, was enacted to mitigate the entry and re-entry into the criminal justice system of individuals who suffer from certain mental disorders by treating those individuals for their disorder rather than prosecuting them. The law recognizes that punishment is not always the best way to address criminal conduct when a mental disorder is driving the behavior. Too often these individuals are in and out of the justice system. It is the goal of pretrial mental health diversion to rehabilitate these defendants through treatment thus empowering them to cease their criminal behavior.

Most offenses, including many felonies, are eligible for consideration, but there are exceptions. Those accused of murder; voluntary manslaughter; most sex crimes (or an assault with the intent to commit those crimes), including rape and child molestation; and using a weapon of mass destruction will not be eligible to apply for pretrial diversion under this law.

There are also eligibility exceptions for certain mental disorders. Those offenders who are diagnosed as having antisocial personality disorder, borderline personality disorder or pedophilia are not eligible for diversion. With those exceptions, however, defendants who suffer from most other mental illnesses or disorders are eligible for pretrial diversion consideration by the court. The law specifically lists certain disorders as eligible for disorder to include bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder. But diversion is not limited to these disorders. What is required by the statute is that the disorder is one identified in the most recent Diagnostic and Statistical Manual of Mental Disorders, often referred to as the DSM, and that the defendant was recently diagnosed with the disorder by a mental health expert. The mental health expert may make his or her diagnosis based on an examination of the defendant, medical reports, the police reports concerning the crime and other relevant evidence. Developmental disabilities such as traumatic brain injury and intellectual disability may qualify under this standard as well as many other disorders not specifically named in the code section. The mental health expert must also be of the opinion that the defendant will respond to treatment and that the treatment will address the motivating criminal behavior.

Additionally, there must be a showing that there is a nexus between the charged crime or crimes and the mental disorder. In other words, the court must determine that the mental disorder or disability played a significant role in, and substantially contributed to, the defendant’s commission of the crime. The court may rely on the mental health expert’s evaluation and any other relevant evidence related to the crime in making this determination.

Another important consideration the court must make is to determine whether the defendant would pose an unreasonable risk to the community if he or she is allowed to enter a treatment program. This may be somewhat imprecise but if the court determines that the defendant may commit a violent felony while in treatment, the court will deny the diversion. Factors that may be included in this determination are the defendants past criminal history and the opinion of the prosecution and defense attorneys and mental health experts who have evaluated the defendant.

Orange County criminal defense attorney William Weinberg assists his mental health diversion eligible clients each step of the way—from arranging the proper mental health evaluations, identifying appropriate treatment programs to presenting the eligibility evidence, as the law requires, to the court.

When the court grants a defendant mental health pretrial diversion, the charges are put “on hold” to give the defendant up to two years to rehabilitate through the appropriate treatment. A treatment plan may be inpatient or outpatient but must be specialized to address the mental disorder that played a role in the commission of the offense. The purpose of the treatment is to prevent the defendant from committing further crimes due to the mental disorder. The defendant must be willing to enter the program and satisfy the court that he or she will cooperate with treatment.

This is not a “get out of jail free” card. The diversion period can be revoked by the court at any time if the defendant is charged with another crime or is engaged in criminal activity or is reported to be responding unsatisfactorily to treatment. In such a case, the court must hold a hearing to determine whether the criminal proceedings should be reinstated , if indicated, the treatment should be adjusted to better address the defendant’s mental health disorder. During the treatment period, the court must receive regular reports from the program regarding the defendant’s progress. During this pretrial mental health diversion process, attorney William Weinberg will keep tabs on the progress of his client, make sure the appropriate reports are submitted to the court, and step in to represent his client in court whenever any issue arises.

The diversion period can last a maximum of two years. After two years or at an earlier point, the court must determine if the defendant has performed satisfactorily in the diversion. The court is guided by the statute in this decision by considering whether the defendant “substantially complied” with the treatment program, whether the defendant has committed any crime during the treatment period, and if there is a long-term mental health treatment plan in place for the defendant. If the court is satisfied that the defendant has performed satisfactorily, the court will dismiss the charge or charges. When, in the court’s estimation, a defendant has not performed satisfactorily, the criminal proceedings will be reinstated.

This new law is a significant recognition by the state of the role mental illness plays in crime. Effective treatment for the mentally ill offender offers hope not only to the offender but to the community.

We Can Help

Orange County criminal defense attorney William Weinberg is thoroughly conversant in this new law and is ready to discuss your or a loved one’s eligibility for pretrial diversion. Call him for a confidential and complimentary consultation at (949) 474-8008 or email him at to set up an appointment. He will review your case and advise you on your options, including his assessment regarding your eligibility to apply for pretrial diversion.

Client Reviews
He was open, honest and compassionate (qualities you don't always find in an attorney) and his credentials proved that he is more than qualified to handle this complicated case. JoAnn H.
Not only did [my case] get resolved with great efficiency, [Mr. Weinberg and his team] were very open with me and kept the lines of communication flowing which I appreciated greatly. Ryan T.
There are many things about our conversations that told me that bill was an honest guy and knew what he was talking about. Amy C.