NEW AB 1810 Bill Creates Unprecedented Mental Health Diversion Program for Felony and Misdemeanor Offenses

On June 27, 2018, Governor Jerry Brown approved AB-1810.[1] AB-1810 legislation creates a pretrial diversion program for defendants suffering from certain mental health disorders who have been charged with misdemeanor and felony offenses. AB-1810 adds Section 1001.35 and 1001.36 to the Penal Code and describes the qualifications and eligibility for entry into the pretrial diversion program.

In enacting a pretrial mental health diversion program, the California Legislature stated the purpose of the Chapter was to promote all of the following:

(a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

(b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.

(c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

In order to be eligible for a grant of pretrial diversion, a defendant must meet all of the following criteria:

(1) Court is satisfied that the defendant suffers from a mental disorder identified in the most recent edition of the “Diagnostic and Statistical Manual of Mental Disorders,” including bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder. The defense must provide evidence of the defendant’s mental disorder and must include a recent diagnosis by a qualified mental health expert.

(2) The court must be satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. The court must conclude that the defendant’s mental disorder “substantially contributed” to the defendant’s involvement in the offense.

(3) A qualified mental health expert opines that the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.

(4) Defendant consents to diversion and waives his or her right to a speedy trial.

(5) The defendant agrees to comply with treatment as a condition of diversion.

(6) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety as denied in Section 1170.18, if treated in the community.

“Pretrial diversion” under this Section means the postponement of prosecution, temporarily or permanently, to allow the defendant to undergo mental health treatment. A defendant may be referred to a mental health treatment program using either inpatient or outpatient mental health resources. The court must approve the proposed treatment program, with input from the parties, and the agency must accept responsibility for the defendant’s treatment and provide regular reports to the defense, prosecution, and the court.

The period a defendant may be diverted shall be no longer than two years and a hearing shall be held to determine whether criminal proceedings shall be reinstated under the following circumstances:

(1) The defendant is charged with an additional misdemeanor alleged to have been committed during pretrial diversion and it reflects a propensity for violence.

(2) Defendant is charged with an additional felony during the pretrial diversion.

(3) The defendant is engaged in conduct rendering him or her unsuitable for diversion.

(4) A qualified mental health expert opines that the defendant: (a) is performing unsatisfactorily or (2) the defendant is gravely disabled.

If the defendant has performed satisfactorily in the diversion program, then at the end of the period of diversion, the court must dismiss the defendant’s criminal charges. Upon successful completion, the arrest upon which the diversion was based shall be deemed never to have occurred and a defendant can indicate in a response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, with some exceptions.

It is clear that through AB-1810, the Legislature is seeking to provide a method for defendants suffering from mental health diagnoses to avoid criminal records and punishment for crimes committed as a result of their mental health disorders.

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