Changes to Mental Health Diversion

Effective June 27, 2018, the Legislature added Penal Code section 1001.36. The provision provides that pretrial diversion may be granted to a defendant who suffers from a "mental disorder" that is listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. In People v. Frahs (2018) 27 Cal.App.5th 784, the Court of Appeal held that the new procedure applies retroactively to cases pending on appeal. Although a petition for review has not been filed in Frahs, a request for depublication was filed and remains pending.

Importantly, effective January 1, 2019, section 1001.36 has already been amended. Although the original version applied to all offenses, the new version now exempts those defendants who are charged with murder, voluntary manslaughter and specified sex offenses.

The upshot is that appellate counsel should carefully review open cases in order to determine if section 1001.36 might apply. Assuming that the client is willing to undertake the mental health treatment required by the statute, there are manifest benefits from seeking a grant of diversion. If the issue applies, counsel should either raise the issue in the opening brief or seek leave to file a supplemental brief.

As noted above, the present version of section 1001.36 applies in all cases. The question therefore arises as to whether those defendants who will be exempted from diversion as of January 1, 2019 have acquired a substantive right that cannot be retroactively taken away. (Strauss v. Horton (2009) 46 Cal.4th 364, 473 [stating a multi-part test for determining whether due process precludes the retroactive application of a new law that abrogates a preexisting right].) Although the answer to this question is by no means clear, counsel should raise the point in an appropriate case.

(November 9, 2018)


Back to News

TEL (408) 241-6171 FAX (408) 241-2877      95 S. Market Street, Suite 570, San Jose CA 95113