Mental Health Diversion
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    Mental Health Diversion in California

    The California Mental Health Diversion Law was passed as California State Senate Bill 215 and became Penal Code 1001.36 in 2018.

    This law allows people with a mental health disorder to have the charges against them dismissed, and their case records sealed if they complete a court-ordered mental health treatment program.

    The Law Offices of David R. Silldorf, APC has a proven track record of successfully attaining Mental Health Diversions for their clients, most recently in an Attempted Murder case. 

    If you or a loved one may be eligible for Mental Health Diversion, contact us today. 

    Who Qualifies for Mental Health Diversion?

    People arrested for misdemeanor and felony crimes can be eligible for Mental Health Diversion if they meet the following criteria: 

    • The person being charged is diagnosed with a mental health disorder like PTSD, Schizophrenia, Schizoaffective Disorder, or Bipolar Disorder.

    • It can be proven that the person’s mental health disorder played a significant role in the crime.

    • A mental health expert believes that the defendant would respond positively to mental health treatment.

    • The person being charged consents to the Mental Health Diversion program and waives their right to the constitutional protection of a speedy trial.

    • The defendant agrees to remain in full compliance with the terms of the Diversion Program.

    • Members of the court agree that the defendant does not pose “an unreasonable risk” to the public.

    Mental Health Diversion FAQs

    This new law is a significant recognition by the state of California of the role that mental health plays in crime. However, many people are still unaware that these laws exist.  Here are some commonly asked questions about Mental Health Diversion.

    To qualify for Mental Health Diversion, the defendant must have a condition listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

    However, the following disorders are not eligible:

    • Antisocial Personality Disorder
    • Borderline Personality Disorder
    • Pedophilia

    Mental health diversion would not be available in cases of certain felonies unless the prosecutor consents. These include:

    • DUI causing injury
    • California Gun Crimes
    • California Drug Crimes
    • Murder or Voluntary Manslaughter
    • Rape
    • Assault with Intent to Commit Rape, Sodomy, or Oral Copulation
    • Lewd or Lascivious Act on a Child Under 14 Years of Age
    • Child Pornography
    • Continuous Sexual Abuse of a Child

    If the defendant is charged with a new misdemeanor that reflects a propensity for violence, is charged with a new felony, or engages in criminal conduct that makes them unsuitable for diversion, the court will hold a hearing to determine whether:

    • The Treatment Program Should be Modified
    • Criminal Proceedings Should be Reinstated
    • The Defendant Should be Referred to a Conservatorship

    Upon completion of the Mental Health Diversion Program, the charges against the defendant are dismissed, and the arrest record is sealed.  The court record will not be able to be used to deny the defendant employment, benefit, or license. 

    However, these records can be used to determine whether a defendant is eligible to be granted mental health diversions for a future crime.

    Under Penal Code 1001.36, the mental health treatment ordered following the grant of a Mental Health Diversion will last a maximum of two years.  The length of treatment depends on the necessity of public safety, the needs of the defendant, and the will of the court.

    Payment can come from private or public funds depending on the defendant’s ability to afford private treatment.  If they cannot afford private care, they may be sent to a county mental health agency or apply for available public resources.

    Once the treatment program is completed and the diversion period is over, the court will dismiss the charges if the defendant is not facing significant new violations and has a plan for long-term mental health care.

    Proving the Need for Mental Health Diversion

    Your chances of being granted Mental Health Diversion (MHD) in California almost always depends on what you can prove. Your ability to affirmatively answer these three questions is critical to your success in obtaining Mental Health Diversion:

    Proving these things requires your lawyer, with your help, to collect various kinds of information, including:

    • Police Reports
    • Witness Statements
    • Documentary Evidence
    • Video and Audio Evidence. 
    • Statements by the Defendant’s Mental Health Treatment Provider
    • Medical Records
    • Reports by Qualified Medical Experts

    Knowing what to look for and where to find this information is crucial to proving the defendant’s eligibility for a Mental Health Diversion. An experienced lawyer who is skilled in curating this evidence can make the difference between a successful outcome and a prison sentence.

    Information Needed For a Mental Health Diversion

    The following examples are the kinds of records your lawyer and expert witnesses will need before they can give an opinion on your case. This is not an exclusive list; records that matter to your Mental Health Diversion case can exist just about anywhere. 

    Discovery

    These are records provided to your lawyer by the prosecutor. Discovery can include police reports, witness statements, your statements, audio, and video recordings, 911 calls, body-worn camera video, surveillance video, lab reports, business records, cell phone/cell tower records, financial records, forensic reports, and medical records. Your lawyer will ask for these records and anything else they think matters to your case that the prosecutor also has access to.

    Medical Records


    This will include records of illnesses, treatment, testing, and any hospitalizations you have had. It is really important to find out if you have ever had treatment for head injuries or had an illness or disease that affects the brain or can affect mental functioning.

    This can be a long and difficult process. Your legal team and experts may need to collect medical records covering your entire life (and maybe even your birth). Your records may come from other states, multiple medical providers, or state and federal governments, and even other countries. With your help and consent to release these records, your lawyer can dig these difficult-to-find records up. But you have to tell them where to look.

    Mental Health Records

    Obviously, this is the most important documents category. It will be difficult, but not impossible, to qualify for MHD unless you can provide a judge with your documented mental health history (including records created after you were charged with a crime.)

    Mental health records will exist with people you talked to about your mental health condition. The records could be with inpatient or outpatient mental health providers, psychiatrists, psychologists, family counselors, social workers, therapists, probation, or parole officers. Records of this type can exist virtually anywhere you have been.

    This includes county jails and prisons, state prisons, Social Security, the Veterans’ Administration, and dozens of other agencies. This is why it is so important to be thorough, honest, and forthcoming with your legal team.

    It goes without saying that your team needs to know where to look for your records in order to get them. And they’re almost always going to need these records before they can help you get Mental Health Diversion.

    Educational Records

    Your school records can be important in helping support your request for MHD. These records can help a judge or prosecutor to understand more than just your grades or how you did in school, but rather how you behaved in school.

    School records often contain reports and evidence that support mental health conditions that were developing or established at an early age. Many mental health conditions begin to show themselves at an early age over a period of years.

    School records are often the first or only records of that development. Your lawyer should be asking you to identify where and when you went to school, all the way from pre-kindergarten to college.

    Employment Records

    Like school records, your employment records can also play a significant role in supporting your mental health diagnosis and establishing any mental condition.

    • How did you perform on the job?
    • What was giving you difficulty?
    • What allowed you to excel in your work?
    • Did mental health issues showing up in your workplace?
    • Did mental health concerns make it difficult to be successful or maintain the job?

    Much like with your school records, your lawyer should be asking you for a list of jobs you have had in your life and why you left them. Many employers will hold onto your employment records for years, so it is important to be as thorough as possible.

    Are you eligible for Mental health Diversion?

    As you can see, in order to be successful in your request for Mental Health Diversion, you, your lawyer, and the defense team need to work together to collect a lot of important records on your behalf.

    This is why it is crucial to select the right criminal defense lawyer, along with an excellent team of experts to support them. Before your lawyer asks any of the questions discussed above of you, you should have some questions of your own:

    • Are your lawyers and experts willing to put in the work?
    • Do they know what work needs to be done? Do they understand Mental Health Diversions?
    • Have they navigated the difficult and ever-changing legal landscape of Mental Health Diversion before?

    Picking the right lawyer can make all the difference. And it may very well determine whether you are granted Mental Health Diversion instead of suffering a serious felony conviction with possible jail or prison time attached.

    Expert Witnesses in Mental Health Diversion Cases

    Most serious criminal cases today need expert witness help in order to understand and defend the case. If DNA is an important part of your case, you will need an expert who has training and work experience in DNA to interpret the lab reports. If you need to prove where you were at the time of a crime by using your cell phone’s GPS data, you are going to need a forensic cell phone/cell tower expert to read the records.

    It is the same with Mental Health Diversion (MHD), except the experts you may need are psychiatrists, psychologists, social workers, pharmacists, investigators, and criminal defense lawyers who can put it all together for presentation to the government and the court. Selecting the right team of experts is perhaps the most important piece of a Mental Health Diversion case.

    The rules on using expert witnesses and what they get to say in order to help you are mostly contained in the California Evidence Code in sections 801-805. Based upon those rules, experts get to give opinions on subjects related to their education, training, and expertise.

    Mental Health Diversion experts will need to give opinions on whether you have a diagnosed mental condition, what is the medical term for that condition, did you have the condition at the time of the crime, and can the condition be treated.

    If one of your experts provides a negative opinion to any of those questions, you may not be eligible for Mental Health Diversion. It is critical that you and your lawyer select the right experts who have experience in dealing with your specific mental health issues.

    Mental health experts have very specific education and training that allow them to give opinions on mental health issues. Most have practiced for many years and have seen hundreds, if not thousands, of patients. They will use their training and experience to determine whether you meet the criteria for Mental Health Diversion. Your lawyer will hire them to do a number of things for you. First, they will review all the necessary records in your case, including:

    • Police Reports 
    • Witness Interviews
    • Body Camera Recordings
    • And Other Discovery Documents

    Additionally, the mental health expert will review all of your mental health records and even some of your relevant medical records—the records relating to all of your inpatient or outpatient mental health treatment matter.

    These records need to be collected by your lawyer with your help. For some people, that could be thousands of pages of records. It is essential to be honest with your lawyer about all of the mental health treatment you have had in the past; because if you don’t tell them, they can’t find them.

    After your experts have carefully reviewed and considered all of the materials discussed above, they will interview you. For some cases, that means a one-time interview. For others, it may take multiple days, depending on the complexity of the case and the individual’s mental health concerns.

    Experts may also need to talk to fact witnesses, including family members and friends. Your expert may need to perform educational and psychological testing completed to see how you are doing today. Such testing will help the expert come to a conclusion about your mental health condition, as well as your current progress and prognosis going forward.

    After this is done, the expert will write a report setting out whether you have a psychological condition that fits within MHD, whether the crime you are charged with arose out of that condition, and whether the condition can be treated successfully. This report is probably the most important piece of your request for Mental Health Diversion.

    Hiring the right criminal defense lawyer to navigate the selection and use of your expert witnesses is probably just as important as getting a good report.

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      Finding a Mental Health Diversion Attorney in San Diego

      Mental Health Diversion cases are complicated, and the consequences for failure can be severe. If you or a loved one suffer from a mental health disorder and have been arrested for a crime in San Diego, David Silldorf is ready to provide you with an experienced defense. 

      If you or a loved one could be eligible for the California Mental Health Diversion Program, you should speak with an attorney who has experience in Mental Health Diversion cases.

      At David Silldorf Law, we know how to defend people with mental health disorders who have been charged with a crime in California. Please contact us today to discuss your case.

      Case Results

      California v. an Individual

      [Furnishing Cannabis to Minor over 14 ]

      The client was an educator, charged with providing high school seniors alcohol and allowing them to use marijuana during a school-sponsored camping trip. The case was high profile because of the large number of students involved and the increasing societal focus on teacher misconduct.

      After a lengthy period of investigation, a thorough collection of prior medical/psychological records, and a complete psychiatric evaluation, the District Attorney and the judge agreed to Mental Health Diversion.


      MENTAL HEALTH DIVERSION

      United States v. an individual

      [Attempted Murder and Elder Abuse ]

      The client had been previously treated for depression but never received a diagnosis under the DSM before the offense. When he was taken off of his medication, it precipitated a psychotic break in the home he shared with his elderly mother.

      During the episode, their client got into a fight with his mother and allegedly choked her. He then grabbed a knife and proceeded to cut both of his wrists, his neck, and stabbed himself in the torso and liver. He survived the grievous self-inflicted injuries.

      MENTAL HEALTH DIVERSION

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