How can a defendant with a qualifying mental health disorder request pretrial diversion under California Penal Code 1001.36?

A defendant can request pretrial mental health diversion by filing a formal motion with the court, supported by evidence from a qualified mental health expert. This request can be made at any time after charges are filed but before sentencing. Here is how to request diversion under Penal Code 1001.36: Step 1: Obtain a Mental Health Evaluation You must be examined by a qualified mental health expert, such as a psychiatrist or licensed psychologist. The expert must diagnose you with a mental health disorder listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The evaluation should explain how this disorder was a significant factor in the commission of the charged offense. Step 2: Gather Required Documents The most critical document is the written report from the mental health expert. This report should confirm your diagnosis, state that your symptoms will respond to treatment, and agree that you do not pose an unreasonable risk to public safety. Collect any other supporting records, such as past treatment history. Step 3: File a Motion with the Court Your attorney will draft and file a formal "Motion for Pretrial Diversion" with the court handling your criminal case. This legal document explains why you are eligible and attaches the expert’s report and other evidence. The motion must be filed before you are sentenced. Step 4: Attend the Diversion Hearing The judge will set a hearing to decide on your request. At the hearing, the judge reviews the evidence and hears arguments from your attorney and the prosecutor. You must be prepared to consent to the diversion program and agree to its terms. Important Details and Nuances: The court must find that you meet all criteria: you have a qualifying disorder, the disorder played a role in the crime, you would respond to treatment, you consent to diversion, and you do not pose an unreasonable risk to public safety. The prosecution has the right to oppose your request. Warnings and Limitations: Not all disorders qualify; for example, antisocial personality disorder and borderline personality disorder are excluded by the statute. A judge has the final say and can deny the request even if you seem to meet the requirements. If you are granted diversion but fail to complete the treatment program, the court can terminate diversion and restart the criminal proceedings. This is general information and does not constitute legal advice. For complex situations, consult with a qualified California attorney.