New diversion program in California for misdemeanors and felonies
California Assembly Bill 1810 has been signed by the Governor, and this diversion program has immediately become law as California Penal Code 1001.36. This law is similar to diversion for military persons per California Penal Code 1001.80.
First, keep in mind this may not be available for someone accused of DUI (see California Vehicle Code 23640). Although there were arguments from the People to stop the military diversion from applying to DUIs, and some Courts ruled military diversion DOES apply to DUIs (although the law was simply rewritten anyway to include DUIs as part of the included diversions as it relates to military diversion per Penal Code 1001.80).
Ok, with that, let’s dive into what this law is and means:
The law at bird’s-eye view:
California Penal Code 1001.36 applies to misdemeanors and felonies, but certain elements must be met.
Per California Penal Code 1001.36(b), to divert the charged crimes:
- Defendant must suffer from a mental disorder. More on that below.
- Defendant must show the “mental disorder played a significant role in the commission of the charged offense.” The Court can consider behavior “at or near the time of the offense….”
- Defendant must show “[i]n the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.”
- Defendant must agree to comply with treatment as a condition of diversion, and the Court “is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” California Penal Code 1001.36(c)(1)(A). This program lasts no longer than 2 years, and Defendant or the program must provide regular reports to the Court. California Penal Code 1001.36(c)(2) – (3). This program can be private or public. California Penal Code 1001.36(c)(1)(B).
- Defendant must waive the right to a speedy trial.
- The Court must be satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. More on this below.
What is a “mental disorder.”
So again, Defendant must suffer “from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.” California Penal Code 1001.36(b)(1).
The most recent version, the 5th Edition, was published in 2013. The DSM-5 includes the following as mental disorders: alcohol or substance abuse; alcohol or substance dependency; anxiety disorders; ADHD/ADD; bipolar disorder; depression; eating disorders; obsessive-compulsive disorder; postpartum depression; posttraumatic stress disorder (PTSD). This is from this site and is not an exhaustive list.
California Penal Code 1001.36 specifically excludes “antisocial personality disorder, borderline personality disorder, and pedophilia.”
How can Defendant prove this?
Defendant must provide a “recent diagnosis by a qualified mental health expert.” California Penal Code 1001.36(b)(1).
And “[i]n opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.” California Penal Code 1001.36(b)(1).
What is an unreasonable risk of danger to public safety, as defined in Section 1170.18?
An “unreasonable risk of danger to public safety” per California Penal Section 1170.18 “means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.
Penal Code 667(d) discusses a serious and/or violent felony being defined in Penal Code 667.5(c) (as a violent felony) or 1192.7 (as a serious felony). With that, both these Penal Code sections include as violent or serious felonies: murder; voluntary manslaughter; any felony in which the defendant personally inflicts great bodily injury (GBI) on any person; any felony punishable by death or imprisonment in the state prison for life.
Can you get removed from the Diversion program?
Per California Penal Code 1001.36(d), if during the diversion program, any of the below happens to Defendant, the Court shall hold a hearing to determine whether to reinstate criminal proceedings:
- Defendant is charged with another misdemeanor or felony or “is engaged in criminal conduct rendering him or her unsuitable for diversion”, then the Court California Penal Code 1001.36(d)(1) – (3)
- Defendant is performing unsatisfactorily in the assigned program. California Penal Code 1001.36(d)(4)(A).
- Defendant is “gravely disabled” (ie. Mentally incompetent per Health and Safety Code 5008(h)(1)(B). See California Penal Code 1001.36(d)(4)(B).
What happens once diverted? Is it sealed and can it be used against you?
Once you successfully complete the diversion program, your arrest is “deemed to never have occurred” and the Court may seal this record. See California Penal Code 1001.9.
If you’re asked about this diversion when applying for a job, you need not say you were arrested or that this was diverted (see California Penal Code 1001.9(a)), unless you’re applying to become a peace officer (see California Penal Code 1001.9(b)).
Also, a record pertaining to an arrest and diversion shall not be used without your consent “in any way that could result in the denial of any employment, benefit, license, or certificate.” See California Penal Code 1001.9(a).
Having said all that, can some people still see the sealed record of this? Yes. Even if sealed, your sealed record of this diversion may still be requested and seen by the Department of Justice if you’re applying to become a peace officer (as stated above, per California Penal Code 1001.9(b)) or if a “criminal justice agency” wants to see it. A “criminal justice agency” includes a peace, police, probation officer, attorney, experts or investigators. See California Penal Code 851.92(d)(4). Also, this sealed record may be used if relevant in a criminal proceeding per the Right to Truth-in-Evidence, where relevant evidence shall not be excluded in any criminal proceeding. See California Constitution, Article I, Section 28(f)(2).