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self-study / Criminal Law

Oct. 13, 2021

Moving for mental health diversion

David A. Katz

Katz & Associates


David was a law clerk for U.S. District Judge John Garrett Penn in Washington, D.C.; an assistant U.S. attorney in Los Angeles from 1983-90; and a criminal defense attorney in Beverly Hills since then.

Penal Code Section 1001.36, enacted in 2018, permits a court to order pretrial diversion for clients with certain mental disorders. It is retroactive, but only to defendants whose cases were not final on appeal on the date of enactment. People v. Frahs, 9 Cal. 5th 618 (2020). Defendants whose cases were final before mid-2018 cannot take advantage of the law. Clients who suffer from antisocial personality disorder, borderline personality disorder, and pedophilia are not eligible for mental health diversion based on those disorders. Clients charged with murder, manslaughter and most sex offenses are ineligible for diversion. A decision last year held that DUI cases also are not eligible for mental health diversion. See, e.g., Moore v. Superior Court, 58 Cal. App. 5th 561 (2020).

An order for diversion can change the focus of a criminal case against a client from facing the risk of conviction and incarceration to getting treatment. Successful completion of mental health diversion results in no criminal record. For most purposes, the case would be sealed and the matter would be treated as if there were no arrest. The consequences are far-reaching. Because a client who successfully completes diversion would not suffer a conviction, he no longer would risk incarceration, deportation, debarment, or loss of a professional license because of a conviction.

A period of diversion may last no more than two years, meaning that, if the client successfully completes diversion, criminal charges would be dismissed no more than two years after the court ordered diversion. A client could be required to pay victim restitution even though he is not convicted of a crime.

The four steps for an attorney contemplating seeking mental health diversion are: (1) obtain a psychologist or psychiatrist to examine the client for mental health disorders; (2) have the mental health expert interview the client and review all the available records; (3) have the expert prepare a report of findings and treatment options; and (4) move the court for an order of diversion.

An attorney should obtain the expert early in the case, if possible. In appointed cases, the attorney should make an ex parte request to the court, based on a showing of good cause, for funds to hire a psychologist or psychiatrist. In some counties, appointed counsel must select from a list of approved experts.

The psychologist or psychiatrist chosen to evaluate the client should have expertise in one of the conditions that qualify under the statute, such as post-traumatic stress disorder, bipolar disorder, schizophrenia, and schizo-affective disorder. Counsel should provide the psychologist or psychiatrist all the relevant evidence about the client and the case, including police reports, preliminary hearing transcripts, witness statements, medical and mental health records, jail records and records of prior convictions and arrests. The mental health expert should meet with the client to assess his/her mental health. Counsel should anticipate that, if the client is detained, it will take time for the expert to arrange with jail authorities to meet with the client. The expert's report should include an assessment of the client's mental health, an opinion as to whether the client's symptoms would respond to treatment, and treatment options.

The court will require the client to make a prima facie showing of eligibility for diversion. The relevant factors -- all of which must be satisfied -- are: (1) the client suffers from a mental disorder listed in the DSM (other than antisocial personality disorder, borderline personality disorder, and pedophilia); (2) the mental disorder was a significant factor in the commission of the offense; (3) the expert believes that the client's symptoms of the mental disorder would respond to treatment; (4) the client agrees to diversion and agrees to waive time; (5) the client agrees to comply with treatment as a condition of diversion; and (6) the client will not pose an unreasonable risk of danger to public safety if treated in the community.

An "unreasonable risk of danger to public safety" is defined as "an unreasonable risk that the petitioner will commit a new violent felony within the meaning of" Penal Code Section 667(e)(2)(C)(iv), which defines violent felonies as certain sex offenses, homicide, solicitation to commit murder, assault with a machine gun on a peace officer, possession of a weapon of mass destruction, and any serious or violent offense punishable by life in prison or death. In determining that, a key consideration is the likelihood the client's symptoms would respond favorably to treatment, but the court is likely to consider other factors, including the circumstances of the charged offense (including what led up to it), the client's criminal and disciplinary history, and previous attempts to treat his/her mental disorders. It is important to stress to the court the "high standard applicable to a finding of 'dangerousness.'"

The court will seek input from the district attorney's office, which could join, submit on, or oppose a request for diversion. Either when the request is made to the court, or before in an appropriate case, a copy of the expert's report and the proposed treatment plan should be submitted to the DA's office. In Los Angeles County, the DA's office has a Mental Health Division. Previously, that office would support a request for diversion only if the head deputy in charge of the Mental Health Division agreed. Presently, however, there is a supervisor in every courthouse in L.A. County who has discretion to decide whether to join, submit on, or oppose a diversion request, and if the supervisor does not join, or submit on, the request, the head deputy of the Mental Health Division will take a second look at it. However, even if the People oppose, delay or do not respond to the request, the court can grant pretrial diversion.

A recent case is People v. Moine, 62 Cal. App. 5th 440 (2021). There, the defendant was charged with three counts of assault and two counts of making criminal threats arising from two separate incidents at an urgent-care facility. The assault counts were based on the defendant getting into a fistfight with another patient over a TV in the waiting room, and the threat charges were based on his telling staff that he would get a gun and kill everyone because he was unhappy with his treatment. Moine had a lengthy misdemeanor history, including three convictions for drug- or alcohol-related offenses and one conviction for hit and run. He also had pending misdemeanor charges of petty theft and refusing to comply with an officer's lawful command. Moine suffered from bipolar disorder.

The trial court denied diversion after finding that Moine posed an unreasonable risk of danger to public safety. In holding that the trial court abused its discretion, the Court of Appeal stressed the following: (1) the trial court must bear in mind the "high standard applicable to a finding of 'dangerousness'"; (2) Moine's criminal history did not include acts of violence; (3) the pending charges (assault and threats) were not "super strikes"; (4) two psychiatrists opined that he posed a low risk of committing an assault in the future; and (5) the trial court previously released Moine on bond pending trial, meaning that the trial court necessarily found that Moine was not likely to cause great bodily harm to others. The Court of Appeal contrasted Moine's situation with cases where diversion was denied because of the risk of future dangerousness in which the defendants had a criminal history of violent crimes, including robbery and assault with a deadly weapon. Moine thus teaches that the most important factors in obtaining diversion are obtaining a favorable opinion from a psychologist or psychiatrist and the nature and circumstances of prior criminal history and the pending charges.

Seeking mental health diversion does not prevent an attorney from simultaneously pursuing other pretrial avenues to defend the client. For example, in a drug case, counsel could move to suppress the fruit of a search and seek mental health diversion. However, it is important to have a frank discussion with the client about his/her situation and options. For example, in some drug possession cases, it may make greater strategic sense to litigate a motion to suppress before pursuing mental health diversion. Reviewing discovery and researching applicable law will inform whether moving to suppress has a realistic chance of success or is a waste of the client's money and the attorney's time that could be better spent on seeking diversion.

Other considerations in deciding whether to seek diversion include whether the diversion motion and exhibits can be filed under seal; whether the People can be persuaded or even required under HIPAA or a similar statute or rule to file their response and exhibits under seal; and whether the court would issue its order, or at least factually sensitive portions of the order, under seal. Given the stigma associated with mental illness, having mental health information made public may be a more problematic outcome for some clients than a criminal conviction and some incarceration. For the client who is a veteran or is eligible for another special program, eligibility for such a program is worth considering before moving for mental health diversion.

An attorney also should consider whether the client's statements to his own psychologist or the People's psychologist are protected from use at trial or sentencing if the court denies diversion or if the client later flunks out of diversion and criminal proceedings are reinstituted. Relatedly, an attorney should consider, in light of the strength of other evidence against the defendant, whether using the defendant's statements to a psychologist would make any practical difference in the criminal proceeding.

Last year the California Supreme Court stressed in Frahs that the purpose of the mental diversion statute is to promote "increased diversion of individuals with mental health disorders ... while protecting public safety"; "allowing local discretion and flexibility for counties" in implementing diversion; and "providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders." Frahs, 9 Cal. 5th at 626. Providing the judge with the law and the facts can help increase the use of mental health diversion called for by the Legislature in Penal Code Section 1001.36, to the benefit of the client and the community.

This article is adapted from a presentation to be held at the L.A. Law Library on Wednesday, October 27 at 1:45 p.m., online and in-person.


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