Recently, I was one of the first attorneys to have a client granted Mental Health Diversion
pursuant to Penal Code Section 1000.36. The catch to getting such a motion granted is to put
together a treatment plan that convinces the judge that the defendant can successfully
complete it over, at most, a two year period and not be a danger to the community. Every
judge’s worst nightmare is to take a chance on a defendant who has mental challenges and
have that defendant commit a serious violent crime while on diversion.
The District Attorney’s Office will object to the request for diversion many times for the same
reason the judge will be afraid to grant it. That is, the criticism that comes with a failed
diversion is more than an elected official wants to deal with despite the legislative mandate to
understand the mental health disability and it’s connection to the commission of crime while
providing a resolution that does not result in a conviction. The mentally ill defendant can be
treated and diverted successfully.
The not so hidden challenge to the defendant who has been diverted under the provisions of
Penal Code Section 1000.36 is that his mental illness makes it very difficult, if not impossible,
for him stick with the treatment plan. The families of the mentally ill know very well the
challenges they face on a daily basis supporting the needs of their mentally ill loved ones.
Reasoning with the mentally ill and imploring them to stick with the court ordered treatment
plan, simply doesn’t always work.
So, with every defendant who is successfully admitted into diversion, the road is a long and
difficult one. To cross the finish line successfully and obtain the dismissal that is theirs as a
matter of right if only they can stick with the treatment plan, sometimes seems like an
insurmountable task. Teamwork between the attorney and the support group of the defendant
is a must. However, each will experience frustration and emotional pain because the setbacks
will come.
The support group, family, and attorney can’t give up hope that a good treatment plan,
executed in a collaborative way, will accomplish everyone’s goal and make for a better life for
the mentally ill defendant. Never give up. Never surrender. You gotta have hope. It’s what
keeps us doing what we do for our mentally ill clients and loved ones.