Existing law authorizes a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor and place the defendant in a pretrial diversion program if the defendant is suffering from sexual trauma, a traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. Existing law authorizes the defendant to be referred to services for treatment and requires the responsible agencies to report to the court and the prosecution not less than every 6 months.

This bill would authorize a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor or a felony punishable in a county jail, and place the defendant in a pretrial diversion program for up to 2 years if the court is satisfied the defendant suffers from a mental disorder, that the defendants mental disorder played a significant role in the commission of the charged offense, and that the defendant would benefit from mental health treatment. For specified offenses, the bill would condition granting diversion on the consent of the prosecution. The bill would require the defense to arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. The bill would require the defense divertees mental health provider to provide reports on the defendants progress to the court and the prosecution court, the defense, and the prosecution not less than every 6 months. 3 months. By increasing the duties of local prosecutors and public defenders, this bill would impose a state-mandated local program. The bill would require, upon successful completion of the diversion program, that the charges be dismissed, dismissed and the records of the arrest sealed, and that the arrest be deemed never to have occurred, except as provided. The bill would state findings and declarations by the Legislature regarding the need for the diversion program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor and place the defendant in a pretrial diversion program if the defendant is suffering from sexual trauma, a traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. Existing law authorizes the defendant to be referred to services for treatment and requires the responsible agencies to report to the court and the prosecution not less than every 6 months.

This bill would authorize a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor or a felony punishable in a county jail, and place the defendant in a pretrial diversion program for up to 2 years if the court is satisfied the defendant suffers from a mental disorder, that the defendants mental disorder played a significant role in the commission of the charged offense, and that the defendant would benefit from mental health treatment. The bill would allow require the defense to arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. The bill would require the defense to provide reports on the defendants progress to the court and the prosecution not less than every 6 months. By increasing the duties of local prosecutors, public defenders, this bill would impose a state-mandated local program. The bill would require the arrest, require, upon successful completion of the diversion program, to that the charges be dismissed, and that the arrest be deemed never to have occurred, except as provided. The bill would state findings and declarations by the Legislature regarding the need for the diversion program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor and place the defendant in a pretrial diversion program if defendant is suffering from sexual trauma, a traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. Existing law authorizes the defendant to be referred to services for treatment and requires the responsible agencies to report to the court and the prosecution not less than every 6 months.

This bill would authorize a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor or a felony punishable in a county jail, and place the defendant in a pretrial diversion program if the court is satisfied the defendant suffers from a mental disorder, that the defendants mental disorder played a significant role in the commission of the charged offense, and that the defendant would benefit from mental health treatment. The bill would allow the defense to arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. The bill would require the defense to provide reports on the defendants progress to the court and the prosecution not less than every 6 months. By increasing the duties of local prosecutors, this bill would impose a state-mandated local program. The bill would require the arrest, upon successful completion of the diversion program, to be deemed never to have occurred, except as provided.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law authorizes a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor and place the defendant in a pretrial diversion program if defendant is suffering from sexual trauma, a traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. Existing law authorizes the defendant to be referred to services for treatment and requires the responsible agencies to report to the court and the prosecution not less than every 6 months.

This bill would authorize a court, with the consent of the defendant and a waiver of the defendants speedy trial right, to postpone prosecution of a misdemeanor or a felony punishable in a county jail, and place the defendant in a pretrial diversion program if the court is satisfied the defendant suffers from a mental disorder, that the defendants mental disorder played a significant role in the commission of the charged offense, and that the defendant would benefit from mental health treatment. The bill would allow the defense to arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. The bill would require the defense to provide reports on the defendants progress to the court and the prosecution not less than every 6 months. By increasing the duties of local prosecutors, this bill would impose a state-mandated local program. The bill would require the arrest, upon successful completion of the diversion program, to be deemed never to have occurred, except as provided.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: August 23, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 8

Author:(Beall) – As Amended Ver:August 21, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill creates a diversion program for defendants whose mental disorder played a significant role in the commission of the charged offense. Specifically, this bill:

1. Authorizes the court, after considering the positions of the prosecution and defense, to grant pretrial diversion to a defendant whose mental disorder played a significant role in the commission of the charged offense. Specifies the eligible offenses are misdemeanors and jail felonies, but excludes specific felonies such as manslaughter.
2. Requires the court to be satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to: a) bipolar disorder, b) schizophrenia, or c) post-traumatic stress disorder, but excluding: a) antisocial personality disorder, b) borderline personality disorder, and c) pedophilia. The court must also find that the disorder contributed to the involvement of the charged offense.
3. Requires the defense to arrange for a mental health treatment program for the divertee. Before approving the treatment, the court must consider various requests and needs. At least every three months, the mental health provider must provide progress reports to the court, defense, and prosecutor.
4. Requires the court to hold a hearing to determine whether the criminal proceedings should be reinstituted if it appears to the court that the divertee is performing unsatisfactorily in the assigned program.

FISCAL EFFECT:

1. Unknown moderate costs (Trial Court Trust Fund/GF) to the trial courts to: a) hold hearings to consider diversion program request; b) review defense requests, prior arrest records, and experts’ reports before the making a determination on diversion; c) review the progress reports of the divertees; and d) hold hearings to determine if criminal proceedings should be instituted.
2. Unknown, potentially significant, reimbursable state mandated costs (GF) to the county public defender’s office to provide for the arrangement of mental health treatment and to possibly retain a mental health expert to prepare the original mental health assessment.
3. Unknown, but potentially significant, cost pressures on county mental health programs to create a treatment plan for the defendant, and prepare and submit the required progress reports at least every three months. In addition, representatives may have to testify in court if the progress is challenged by the prosecution.
4. Unknown, but potentially significant costs (GF) to the Department of Justice (DOJ). The Appeals, Writs & Trials Division within DOJ foresees needing to hire additional investigators and mental health experts in order to litigate these cases and challenge the defendants’ requests for diversion.

COMMENTS:

1. Background. Under current law, pretrial diversion, to varying degrees, is available for misdemeanor charges when the defendant has cognitive disabilities; misdemeanor charges stemming from an active service member or veteran’s service-related trauma, substance abuse, or mental health problems; misdemeanor non-driving-under-the-influence offenses; writing bad checks; and offenses relating to controlled substances, alcohol, and prostitution.

Pretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. Existing law also provides for post-plea alternatives under which the entry of the court’s judgment is deferred pending the defendant’s participation in a treatment program.

1. Purpose. According to the author, "Roughly a third of inmates in California’s jails suffer from serious mental illness. Too often, untreated mental illness was the reason these individuals became involved with law enforcement. One reason for the constant jailing of mentally ill Californians is that under current law, trial courts have no ability to rehabilitate mentally ill Californians charged with even minor criminal offenses.”

“SB 8 builds on existing California law that provides diversion options for veterans who suffer from PTSD or other mental health conditions. These programs result in extremely low recidivism rates among participants and significant cost savings to counties.”

SB 8 provides the courts, after considering the positions of the defense and prosecutor, the authority to grant pretrial diversion to defendant charged with misdemeanors or felonies that are punishable in county jail under Realignment, if the defendant has a mental disorder, as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders excluding three specific disorders, and the mental illness played a significant role in the commission of the offense, and the defendant would benefit from mental health treatment. However, the list of mental disorders included is very broad and inclusive.

This bill makes the defense responsible for arranging a program of mental health treatment and requires the mental health program to provide progress reports to the court, the defense and the prosecutor not less than every three months. A defendant may not be diverted for a period of time longer than two years. If a defendant successfully completes the diversion program then the criminal charges are dismissed. If the defendant is not performing satisfactorily in the diversion program, the court must hold a hearing to determine whether criminal proceedings should be reinstated.

1. Support. The County Behavioral Health Directors Association states, “Roughly one-third of inmates in California’s jails suffer from serious mental illness. Under current law, trial courts have little ability to rehabilitate mentally ill Californians charged with even minor criminal offenses… [SB 8] furthers the Governor’s and Legislature’s goal of reducing jail and prison populations.”
2. Opposition. According to the California District Attorneys Association, “The goal of the bill is to allow defendants to avoid prosecution by showing that they suffer ‘from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,.. When coupled with the broad universe of offenses eligible for diversion, and no limits on the number of times a person may receive diversion for the same conduct, it’s easy to see how this might become a problem:
3. A peeping Tom who avoids a PC 647(j) charge for taking nude photographs of a person without their consent, because he suffers from voyeuristic disorder….
4. A serial thief whose string of commercial burglaries are a product of her kleptomania.
5. Related Legislation: AB 154 (Levine), requires a court, upon the conviction of a defendant resulting in a state prison sentence, to recommend that the defendant receive a mental evaluation. AB 154 is on the Senate Floor on third reading.

SB 142 (Beall) establishes the County Mental Health Incarceration Rate Reduction Incentive Program to encourage counties to reduce the incarceration rate for defendants suffering from mental illness. SB 142 is pending in the Assembly Public Safety Committee.

1. Prior Legislation: SB 1227 (Hancock), Chapter 658, Statutes of 2013, created a diversion program for veterans who commit misdemeanors or county jail-eligible felonies and who are suffering from service-related trauma or substance abuse.
   

SB 1054 (Steinberg), Chapter 436, Statutes of 2014, clarifies that mental health grants be divided equally between adult and juvenile mentally ill offender crime reduction grants and streamline the grant process.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 27, 2017

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 8

Author:(Beall) – As Amended Ver:February 21, 2017

SUMMARY:

Authorizes a court to postpone prosecution of a misdemeanor or a felony punishable in a county jail, and place the defendant in a pretrial diversion program if the court is satisfied the defendant suffers from a mental disorder, that the defendant’s mental disorder played a significant role in the commission of the charged offense, and that the defendant would benefit from mental health treatment. Specifically, this bill:

1. Allows a court to grant pretrial diversion to a defendant on a misdemeanor offense or felony offense punishable in a county jail (realignment), if the defendant meets the following criteria:
   
   1. The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, or post-traumatic stress disorder. Evidence of the defendant’s mental disorder shall be provided by the defense and may take the form of an opinion by a licensed psychiatrist or psychologist, records of prior psychiatric hospitalizations, evidence that the defendant receives federal Supplemental Security Income benefits, or any other reliable evidence; and
      
   2. The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense.  A court may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, or records by qualified medical experts, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense;
      
   3. The court is satisfied that the defendant would benefit from mental health treatment; and
      
   4. The defendant consents to diversion and waives his or her right to a speedy trial.
      
2. Defines “pretrial diversion,” for purposes of this bill as “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication to allow the defendant to undergo mental health treatment.”
   
3. Conditions pretrial diversion as described in this bill upon the following:
   
   1. The defense shall arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. The treatment may be procured using private or public funds, as specified;
      
   2. The defense shall provide reports to the court and the prosecutor from the divertee’s mental health provider on the divertee’s progress in the diversion program not less than every six months;
      
   3. If it appears to the court that the divertee is performing unsatisfactorily in the assigned program, or that the divertee is not benefiting from the treatment and services provided pursuant to the diversion program, the court shall, after notice to the divertee, hold a hearing to determine whether the criminal proceedings should be reinstituted; and
      
   4. The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.
      
4. Provides that if the person has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed.
   
5. States that upon dismissal of the charges, a record shall be filed with the Department of Justice indicating the disposition of the case diverted pursuant to this section.
   
6. Provides that upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed never to have occurred.
   
7. States that the divertee who successfully completes the diversion program may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified.
   
8. States that regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to any peace officer application request.
   
9. Specifies that this bill does not relieve the divertee who successfully completes diversion pursuant to this bill of his or her obligation to disclose the arrest in a response to any direct question contained in any questionnaire or application for a position as a peace officer.
   
10. States that a finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of diversion pursuant to this section may not be used in any other proceeding without the defendant’s consent.

EXISTING LAW:

1. Provides for pretrial diversion of a misdemeanor offense when the defendant was or is currently a member of the military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. (Pen. Code, § 1001.80.)
2. States that pretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. (Pen. Code, § 1001.1.)
   
3. Provides for diversion of misdemeanors when the defendant is a person with cognitive disabilities. (Pen. Code, § 1001.20 et seq.)
   
4. Provides for diversion of bad check cases. (Pen. Code, § 1001.60 et seq.)
   
5. Establishes the Law Enforcement Assisted Diversion program for offenses related to controlled substances, alcohol and prostitution. (Pen. Code, § 1001.85 et seq.)
   
6. Authorizes a trial court to "defer entry of judgment" (DEJ) for eligible drug offenders, provided the offender pleads guilty and completes an approved drug program, as specified. (Pen. Code, § 1000.)
   
7. Provides upon successful completion of a DEJ program, the arrest upon which the judgment was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted DEJ for the offense, except as specified. (Pen. Code, § 1000.4, subd. (a).)
8. Authorizes a "preguilty plea" diversion for eligible drug offenders in counties where the court, the prosecutor and the public defender agree to use such a process. (Pen. Code, § 1000.5.)
   
9. Authorizes the District Attorney to approve pretrial diversion programs within the county of their jurisdiction, for misdemeanors that do not include DUIs. (Pen. Code, § 1001.2.)
   
10. Specifies that pretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. (Pen. Code, § 1001.1.)
    
11. Provides that a divertee is entitled to a hearing, as set forth by law, before his or her pretrial diversion can be terminated for cause. (Pen. Code, § 1001.4.)
    
12. States that if the divertee has performed satisfactorily during the period of pretrial diversion, the criminal charges shall be dismissed at the end of the period of diversion. (Pen. Code, § 1001.7.)
    
13. Specifies that upon successful completion of a pretrial diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified. (Pen. Code, § 1001.9, subd. (a).)
    
14. States that a record pertaining to an arrest resulting in successful completion of a pretrial diversion program shall not, without the divertee's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (Pen. Code, § 1001.9, subd. (a).)
    
15. Requires non-violent drug possession offenders and parolees to receive drug treatment instead of incarceration. (Pen. Code, §§ 1210.1 and 3063.1.)
    
16. Specifies that when a person is charged with driving under the influence or alcohol or drugs, the court shall not suspend or dismiss the criminal proceedings because the defendant participates in education, training, or treatment programs. (Veh. Code, § 23640.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Roughly a third of inmates in California’s jails suffer from serious mental illness. Too often, untreated mental illness was the reason these individuals became involved with law enforcement. One reason for the constant jailing of mentally ill Californians is that under current law, trial courts have no ability to rehabilitate mentally ill Californians charged with even minor criminal offenses, without first convicting them, thereby damaging their prospects for future employment and housing.
   

“Because jailing a mentally ill defendant does nothing to address the root of the problem, such defendants are almost certain to reoffend, and to do so quickly. It is this street-to-jail cycle that poses the greatest threat to public safety as defendants with untreated mental illness are jailed, given the burden of a criminal record, and then released back onto the street without meaningful treatment.

“Such an approach is not only grossly unfair to people whose offenses are the product of mental illness, it is also impractical and costly. The predictable results of California’s current reliance on this outdated method are higher costs for taxpayers, who are forced to pay for the continuous warehousing of the mentally ill, when early, court-assisted interventions are far more likely to lead to longer, cheaper, more stable solutions for the community and for the person suffering from mental illness.

“SB 8 diversion is not automatic or required. SB 8 grants trial courts the discretion to offer a diversionary sentence to defendants who suffer from mental illness when charged with low level offenses, after a showing that mental illness played a significant role in the commission of the underlying offense, and that the defendant would benefit from mental health treatment.

“SB 8 builds on existing California law that provides diversion options for veterans who suffer from PTSD or other mental health conditions. These programs result in extremely low recidivism rates among participants and significant cost savings to counties.

“SB 8 will save California money by avoiding trial and incarceration costs in situations where treatment is more appropriate. A diversionary sentence is designed to address the underlying cause of the offense- mental illness. When defendants participate in treatment and rehabilitation, they are less likely to re-offend. Californians who complete diversionary sentences will be more likely to access housing, find employment, and contribute to their communities.”

1. Prevalence of Mentally Ill Offenders in Jails: A 2009 study based on inmate interviews conducted in Maryland and New York jails found that, within the month previous to the survey, 16.7% of the inmates (14.5% of males and 31% of females) had symptoms of a serious mental illness (schizophrenia, schizoaffective disorder, bipolar disorder, major depression or brief psychotic disorder). However, 31% of the inmates who were asked to participate in the study refused, a subset that almost certainly included many individuals with paranoid schizophrenia. The interviews were conducted between 2002 and 2006. Given the continued growth of mental illness in the criminal justice system since that time and the high rate of refusers in the survey, it is reasonable to estimate that approximately 20% of jail inmates today have a serious mental illness. (Serious Mental Illness Prevalence in Jails and Prison, Treatment Advocacy Center, September 2016.)
   

According to the Los Angeles Sheriff’s Department (LASD), the overall jail population decreased in 2015, while the mentally ill population was on the rise. Between 2009 and 2016, LASD reports seeing a 60% increase in its mentally ill population. In early September 2016, a quarter of L.A. County's inmates received some form of mental health treatment. Because many of the mentally ill inmates need to be housed alone, it creates a bed shortage in the general population. (http://www.cnn.com/2016/09/22/us/lisa-ling-this-is-life-la-county-jail-by-the-numbers/index.html)

Housing mentally ill inmates in a custodial setting creates other difficulties, in addition to bed shortages. Jails are often not set up to provide effective mental health treatment and are not the best treatment option for the inmate. Mentally ill inmates are expensive to house. Mentally ill inmates cost more than other prisoners for a variety of reasons, including increased staffing needs. In Broward County, Florida in 2007, it cost $80 a day to house a regular inmate but $130 a day for an inmate with mental illness. (Serious Mental Illness Prevalence in Jails and Prison, Treatment Advocacy Center, September 2016.)

1. Recommendations from Judicial Council Related to Diversion for Mentally Ill Defendants: The Judicial Council convened a task force to examine the issues related to mentally ill defendants within the court system. The task force published their final report in December of 2015. The report recommended the development of diversion programs for mentally ill defendants. The report stated that resources must be dedicated to identify individuals with mental illness who are involved or who are likely to become involved with the criminal justice system. The report went on to say that interventions and diversion possibilities must be developed and utilized at the earliest possible opportunity. (Mental Health Issues Implementation Task Force: Final Report, Judicial Council, December 2015, P. 5.)
   
2. Pretrial Diversion and Deferred Entry of Judgment: Existing law provides avenues for diversion on misdemeanor charges through the court system. The statutory framework allows for diversion by means of deferred entry of judgment or pretrial diversion.
   
   In deferred entry of judgment, a defendant determined by the prosecutor to be eligible for deferred entry of judgment must plead guilty to the underlying drug possession charge. The court then defers entry of judgment and places the defendant in a rehabilitation and education program. If he or she successfully completes the program, the guilty plea is withdrawn and the arrest is deemed to have not occurred. If the defendant fails in the program, the court imposes judgment and sentences the defendant.
   
   In pretrial diversion, the criminal charges against an eligible defendant are set aside and the defendant is placed in a rehabilitation and education program treatment. If the defendants successfully complete the program, the arrest is dismissed and deemed to not have occurred. If the defendant fails in the program, criminal charges are reinstated. Existing law provides that counties can set up a misdemeanor pretrial diversion program if the District Attorney, Courts and the Public Defender agree.
   
   This bill would give the courts the authority to grant pretrial diversion to defendant charged with misdemeanors or felonies that are punishable in county jail under Realignment, if the defendant has a mental illness, the mental illness played a significant role in the commission of the offense, and the defendant would benefit from mental health treatment. The defense is responsible for arranging a program of mental health treatment and providing progress reports to the court not less than every six months. A defendant may not be diverted for a period of time longer than two years. If a defendant successfully completes the diversion program then the criminal charges are dismissed. If the defendant is not performing satisfactorily in the diversion program, the court must hold a hearing to determine whether criminal proceedings should be reinstated.
   
   Under the provisions of this bill, it is permissive for a judge to grant diversion when the conditions set forth in this bill exist. The permissive nature of this bill provides judges the discretion to admit or deny a defendant with specified mental health issues to the diversion program. If a judge feels that a defendant’s participation in a diversion program is not appropriate from the standpoint of public safety, or any other reason, the judge can prohibit the defendant from participating in diversion, and the prosecution would continue in the normal fashion. A judge would maintain discretion judge to fashion appropriate conditions for participation in, and successful completion of, diversion. If a case involves victim restitution, a court can condition participation in diversion upon an agreement that payment of restitution is a part of defendant’s diversion. Courts would have the discretion to tailor the conditions of the diversion to meet the needs of the individual defendant and the community based on the circumstances of each case.
   
3. Under Existing Law, Judges Have Discretion to Impose Conditions on Felony or Misdemeanor Cases When a Defendant is Placed on Probation: Probation is the suspension of the imposition or execution of a sentence and the conditional release of a defendant into the community under the direction of a probation officer. “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” People v. Carbajal (1995) 10 Cal.4^th 1114,1120. Probation can be conditioned on serving a period of incarceration in county jail and on conditions reasonably related to the offense.

Courts have broad general discretion to fashion and impose additional probation conditions that are particularized to the defendants. People v. Smith (2007) 152. Cal.App.4^th 1245, 1249. Courts may impose any “reasonable” conditions necessary to secure justice and assist the rehabilitation of the probationer. Under existing law, a judge can impose a condition of probation that a defendant spend a certain amount of time in a residential mental health facility in conjunction with a jail sentence, or as an alternative to a jail sentence. In imposing probation conditions related to mental health, the court is not limited to ordering residential mental health treatment. The court can order outpatient mental health treatment, or other mental health directives the court finds appropriate. When a defendant is placed on probation the court retains jurisdiction over the case to ensure the defendant complies with probation. The court has the power to impose further punishment if the defendant does not comply with probation.

While courts have power to fashion conditions related to mental health treatment when a defendant is placed on probation, this bill would give courts another option. This bill would allow courts to give a mentally ill defendant the opportunity to participate in treatment and possibly avoid a criminal conviction altogether.

1. It is Unclear Whether a Misdemeanor DUI Offense is Eligible for Diversion under this Bill: SB 1227 (Hancock), Chapter 658, Statutes of 2013, created a military diversion program which is set forth in Penal Code section 1001.80. It provides that whenever a defendant charged with a misdemeanor is a veteran or current member of the military, who may be suffering from service-related trauma, substance abuse, or mental health issues, the court may place the defendant in a pretrial diversion program with the defendant’s consent and waiver of speedy trial rights. (Pen. Code, § 1101.80.) The diversion period shall last no longer than two years. (Pen. Code, § 1101.80, subd. (h).) If the defendant successfully completes the diversion program, the arrest on which the diversion was based is deemed to have never occurred, except with regard to an application for a peace officer position. (Pen. Code, § 1101.80, subd. (i).)
   
   Vehicle Code section 23640 prohibits diversion for anyone charged with a DUI offense (Veh. Code, §§ 23152, 23153). The military diversion statute does not mention this rule. (Pen. Code, § 1101.80.)

In grappling with these two statutes, the state courts of appeal have issued conflicting opinions. Division One of the Fourth Appellate District held that Vehicle Code section 23640 prohibits diversion pursuant to Penal Code section 1001.80 for defendants charged with DUI offenses. (People v. VanVleck (2016) 2 Cal.App.5th 355, rev. gtd. Nov. 16, 2016, S237219.) Division Four of the Second Appellate District reached the opposite conclusion. (Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, rev. gtd. Nov. 16, 2016, S237734.) The California Supreme Court has taken up the issue in these cases.

SB 725 explicitly states that notwithstanding Vehicle Code section 23640, misdemeanor DUI is an offense for which a defendant may be placed in the military diversion program. SB 725 also explicitly states this does not relieve the person of the administrative sanctions that DMV may take against his or her license.

This bill does not mention whether it specifically intends for DUI offenses to be included in its provisions.

1. Argument in Support: According to the Californians for Safety and Justice, “For many years California has sought to address prison overcrowding and reduce unnecessary expenditures on incarceration. SB 8 is a common sense solution to the over-jailing of Californians with mental illness. SB 8 will save California money by avoiding trial and incarceration costs in situations where treatment is more appropriate.
   

“Specifically, SB 8 allows trial courts, with the consent of the defendant, to postpone prosecution of a misdemeanor or a felony punishable in a county jail, and place the defendant in a pretrial diversion program if the defendant has a mental illness that played a significant role in the commission of the charged offense. SB 8 also provides that, upon successful completion of the diversion program, the arrest will be deemed never to have occurred.

“Given the stigma around mental illness and lack of community treatment options, many individuals first recognition of their mental illness and opportunity for treatment is during their interaction with the criminal justice system. This results in higher costs for taxpayers, who pay for continuous warehousing of the mentally ill in jails. Early, court-assisted interventions are far more likely to lead to cheaper, more stable solutions for the community and for the person suffering from mental illness.

“Additionally, SB 8 promotes public safety. When people participate in treatment and rehabilitation, they are less likely to re-offend. Californians who complete diversionary sentences and have access to mental health treatment will be more likely to access housing, find employment, and contribute to their communities.”

1. Argument in Opposition: According to the California District Attorneys Association, “The goal of the bill is to allow defendants to avoid prosecution by showing that they suffer ‘from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, or post-traumatic stress disorder.’ Those are but three examples of the mental disorders included in the DSM. In fact, a defendant could show that he or she suffers from antisocial personality disorder, pyromania, or any of the more than 300 mental disorders listed in the most recent version of the DSM. When coupled with the broad universe of offenses eligible for diversion, and no limits on the number of times a person may receive diversion for the same conduct, it’s easy to see how this might become a problem:
   

A peeping Tom who avoids a PC 647(j) charge for taking nude photographs of a person without their consent, because he suffers from voyeuristic disorder.

A person diagnosed with pedophilia whose charge for contacting a minor with intent to commit a sexual offense (PC 288.4(a)(1)) is diverted, allowing him to avoid sex offender registration under PC 290(c).

A serial thief whose string of commercial burglaries are a product of her kleptomania .

A drunk driver whose DUIs are diverted because he has an alcohol and substance abuse disorder.

“Moreover, leaving the ‘proof’ of such mental illness to whomever the defense wishes to pay to render such an opinion invites a cottage industry and potential abuse. While the bill says nothing about whether the prosecution may attempt to rebut the claim, even if we could, the cost to the counties would be tremendous. In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 8 would allow every one of those defendants (plus a sizeable cohort of 1170(h) felons) to make the case for diversion based on any of the mental disorders listed in the DSM. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for up to two years while the defendant participates in the program.

“If a person fails the diversion program, the fact that this is pre-plea diversion makes the case difficult and potentially impossible to prosecute two years later, when witnesses move, lose interest, or suffer memory loss as the case ages with no movement toward resolution. In fact, the amount of time since the crime’s commission could actually be far greater than two years, given the amount of time it may take to get the defendant into court to answer for the crime, the amount of time it takes for the defendant to convince the court to grant the diversion, and the two-year maximum length of the diversion program.

“Finally, SB 8 seems to ignore the reality that many of these crimes have victims, lacking even basic language to address how victim restitution would be impacted in the event of a case dismissal and/or during the pendency of a lengthy diversion process.”

1. Related Legislation:
   
   1. AB 154 (Levine), would require a court, upon the conviction of a defendant resulting in a state prison sentence, to recommend that the defendant participate in a counseling or education program having a mental health component while imprisoned if the court makes specified findings. AB 154 is awaiting hearing in the Senate Public Safety Committee.
      
   2. SB 142 (Beall), would establish the State Community Mental Health Performance Incentives Fund to encourage counties to reduce the incarceration rate for defendants suffering from mental illness. SB 142 is set for hearing on June 27, 2017 in this committee.
      
2. Prior Legislation:
   
   1. SB 1227 (Hancock), Chapter 658, Statutes of 2013, created a diversion program for veterans who commit misdemeanors or county jail-eligible felonies and who are suffering from service-related trauma or substance abuse.
      
   2. SB 1054 (Steinberg), Chapter 436, Statutes of 2014, clarifies that mental health grants be divided equally between adult and juvenile mentally ill offender crime reduction grants and streamline the grant process.
      
   3. SB 1323 (Cedillo), of the 2005-2006 Legislative Session, would have appropriated $350,000 from the General Fund to the department for allocation, over 5 years, to the County of Los Angeles, at the consent of the county, for the purpose of funding one position to work, in conjunction with the Los Angeles County Superior Court, on a 5‑year Prototype Court Pilot Program for nonviolent felony offenders in the state who have been identified as having both serious mental health and substance abuse problems. SB 1323 was held in the Senate Appropriations Committee.
      
   4. SB 643 (Ortiz), of the 2001-2002 Legislative Session, would have enacted the Mental Health Enhancement and Crime Prevention Act of 2001, which would require the board to reimburse counties meeting specified requirements for the excess cost of providing more effective psychotropic medications to inmates in county correctional facilities during their incarceration and after release. SB 643 was held in the Assembly Appropriations Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association (Sponsor)
American Civil Liberties Union of California
American Friends Service Committee
Association of Regional Center Agencies
California Access Coalition
California Association of Psychiatric Technicians
California Attorneys of Criminal Justice
California Coalition for Women Prisoners
California Council of Community Behavioral Health Agencies
California Psychiatric Association
California Youth Empowerment Network
Californians for Safety and Justice

Disability Rights California
Friends Committee on Legislation of California
Mental Health America of California
NAMI California
National Association of Social Workers, California Chapter
Steinberg Institute
Western Regional Advocacy Project

Opposition

California Police Chiefs Association
California District Attorneys Association
Crime Victims United
District Attorney of Alameda County, Nancy O’Malley

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 8

Author: , et al.

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 3/21/17

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT: Diversion: mental disorders

SOURCE: California Public Defenders Association

DIGEST:

This bill creates a pretrial diversion program for defendants who commit a misdemeanor or jail felony who suffer from a mental disorder if the mental disorder played a significant role in the commission of the charged offense.

ANALYSIS:

Existing law:

1. States that pretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. (Pen. Code, § 1001.1.)
2. Provides for diversion of misdemeanors when the defendant is a person with cognitive disabilities. (Pen. Code, § 1001.20 et seq.)
3. Provides for diversion of bad check cases. (Pen. Code, § 1001.60 et seq.)
4. Establishes the Law Enforcement Assisted Diversion program for offenses related to controlled substances, alcohol and prostitution. (Pen. Code, § 1001.85 et seq.)
5. Provides pretrial diversion for veterans who commit misdemeanors who are suffering from service-related trauma or substance abuse, as specified. (Pen. Code, § 1001.80 et seq.)

This bill:

1. Creates a diversion program for defendants who suffer from a mental disorder if the mental disorder played a significant role in the commission of the charged offense.
2. Authorizes a court to grant pretrial diversion pursuant to the provisions in this bill if all of the following criteria are met:
   1. The court is satisfied that the defendant suffers from a mental disorder, as specified, proven by evidence provided by the defense which may take the form of an opinion of a licensed psychiatrist or psychologist, records of prior psychiatric hospitalizations, evidence that the defendant receives Federal Supplemental Security Income benefits, or any other reliable evidence;
      
   2. The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, or records by qualified medical experts, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense;
      
   3. The court is satisfied that the defendant would benefit from mental health treatment; and,
      
   4. The defendant consents to diversion and waives his or her right to a speedy trial.
3. Requires the defense to arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources.
4. States that the treatment may be procured using private or public funds, but a referral may be made to a county mental health agency only if that agency has agreed to accept responsibility for the treatment of the defendant and mental health services are provided only to the extent that resources are available and the defendant is eligible for those mental health services.
5. Requires the defense to provide reports to the court and the prosecutor from the divertee’s mental health provider on the divertee’s progress in the diversion program not less than every six months.
6. Provides that if it appears to the court that the divertee is performing unsatisfactorily in the assigned program, or that the divertee is not benefiting from the treatment and services provided pursuant to the diversion program, the court shall, after notice to the divertee, hold a hearing to determine whether the criminal proceedings should be reinstituted.
7. Specifies that the period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.
8. States that if the divertee has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed. Upon dismissal of the charges, a record shall be filed with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed never to have occurred. The divertee who successfully completes the diversion program may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified.
9. Specifies that upon successful completion of diversion, the divertee shall be advised that regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by DOJ in response to any peace officer application request.
10. States that a finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of diversion may not be used in any other proceeding without the defendant’s consent.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Potential ongoing unknown court costs likely over $50,000 annually (General Fund) to the extent courts use this pretrial diversion option. Workload increases include conducting assessments to determine defendant eligibility, assessing appropriate program placements, holding periodic hearings, reviewing progress reports, and collaborating with various agencies.
• Potentially significant county mental health services costs (local funds), likely non-reimbursable, as placements with county mental health agencies are authorized only if the agencies accept responsibility for the treatment of the defendants.
• Potentially significant future cost savings to the criminal justice system, to state and local agencies, in averted court proceedings and reduced local incarceration, supervision, and prosecution costs to the extent participation in diversion programs is successful.

SUPPORT: (Verified 5/26/17)

California Public Defenders Association (source)

ACLU of California

American Friends Service Committee

Association of Regional Center Agencies

California Access Coalition

California Association of Psychiatric Technicians

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Coalition of Women Prisoners

California Council of Community Behavioral Health Agencies

California Psychiatric Association

Disability Rights California

Drug Policy Alliance

Friends Committee on Legislation of California

Immigrant Legal Resource Center

Mental Health America of California

NAMI California

National Association of Social Workers

SEIU California

Steinberg Institute

UCSF Psychiatry Resident Association

Western Regional Advocacy Project

OPPOSITION: (Verified 5/26/17)

Alameda County District Attorney’s Office

California District Attorneys Association

Crime Victims Action Alliance

Crime Victims United

Prepared by: Stella Choe / PUB. S. /

5/27/17 18:27:31

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 8 (Beall) - Diversion: mental disorders

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 8 would authorize pretrial diversion for defendants who, because of a mental disorder, are charged with committing a misdemeanor or realigned felony offense.

Fiscal Impact:

• Potential ongoing unknown court costs likely over $50,000 annually (General Fund) to the extent courts use this pretrial diversion option. Workload increases include conducting assessments to determine defendant eligibility, assessing appropriate program placements, holding periodic hearings, reviewing progress reports, and collaborating with various agencies.
• Potentially significant county mental health services costs (local funds), likely non-reimbursable, as placements with county mental health agencies are authorized only if the agencies accept responsibility for the treatment of the defendants.
• Potentially significant future cost savings to the criminal justice system, to state and local agencies, in averted court proceedings and reduced local incarceration, supervision, and prosecution costs to the extent participation in diversion programs is successful.

Background:

Generally, pretrial diversion results in the defendant avoiding a criminal conviction for the offense for which he or she was charged and a dismissal of the charge if the defendant meets the terms of the diversion program to the court’s satisfaction. If the defendant performs unsatisfactorily during the period of diversion, the prosecution of the charged offenses may recommence. Currently, pretrial diversion, to varying degrees, is available for misdemeanor charges when the defendant has cognitive disabilities; misdemeanor charges stemming from an active service member or veteran’s service-related trauma, substance abuse, or mental health problems; misdemeanor non-driving-under-the-influence offenses; writing bad checks; and offenses relating to controlled substances, alcohol, and prostitution. Existing law also provides for post-plea alternatives under which the entry of the court’s judgment is deferred pending the defendant’s participation in a treatment program.

Proposed Law:

This bill seeks to allow pretrial diversion of misdemeanor and realigned felony charges for defendants whose mental disorder played a significant role in the commission of the charged offense. Specifically, this bill:

• Authorizes a court to grant pretrial diversion, regardless of any other law, in any case alleging the commission of a misdemeanor offense or a felony offense punishable with incarceration in county jail if all of the following criteria are met:
  • The 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;
  • The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the offense;
  • The court is satisfied that the defendant would benefit from mental health treatment; and
  • The defendant consents to diversion and waives his or her right to a speedy trial.
• Defines “pretrial diversion” to mean temporary or permanent postponement of prosecution at any point in the judicial process from the point at which the accused is charged until adjudication to allow the defendant to undergo mental health treatment.
• Requires the defense to arrange, to the court’s satisfaction, for a mental health treatment program using existing inpatient or outpatient mental health resources.
• Allows treatment to be procured using private or public funds but limits referrals to a county mental health agency to when the agency has resources available and accepts responsibility for the defendant’s treatment and the defendant is eligible for those mental health services.
• Requires the defense to provide reports by the treatment provider to the court and the prosecutor of the defendant’s progress at least every six months.
• Allows the court to hold a hearing to determine if criminal proceedings should be reinstituted only if:
  • It appears to the court that the defendant is performing unsatisfactorily in the program or is not benefiting from the treatment and services; and
  • After notice to the defendant is provided.
• Limits diversion of criminal proceedings to no more than two years.
• Requires dismissal of criminal charges after the defendant’s satisfactory performance during the term of diversion.
• Provides, after the defendant’s satisfactory performance during the term of diversion, that the arrest upon which the diversion was based is deemed never to have occurred and allows the defendant to respond accordingly except in response to an application for any peace officer position.
• Prohibits, in any other proceeding, the use of a finding that the defendant suffers from a mental disorder, any progress reports about the defendant’s treatment, or any other records related to a mental disorder that were created as a result of the diversion without the defendant’s consent.

Prior Legislation:

SB 1227 (Hancock, Ch. 658, Stats. 2013) authorized pretrial diversion for active service members and veterans alleged to have committed misdemeanor offenses if the person suffers from trauma, substance abuse, or mental health problems resulting from his or her military service.

Staff Comments:

This bill potentially would create significant new and ongoing workload to the courts to administer a pretrial diversion program. It is unknown approximately how many people would fall under the purview of a mental health pretrial diversion program, but it could be sizeable. The author estimates that “[r]oughly one-third of inmates in California’s jails suffer from a serious mental illness.” Additionally, looking at Los Angeles County specifically, it has been reported that, while the overall population of inmates has decreased, the percentage of inmates with mental health illnesses has increased. (http://www.latimes.com/local/california/la-me-mentally-ill-inmate-snap-story.html). To the extent that the court considers pretrial diversion as an alternative to prosecution, there is a potentially large segment of defendants on whom trial courts may be conducting suitability determinations. In addition to conducting mental health assessments, the courts offering pretrial diversion would need to assess appropriate program placements, provide notice to defendants of hearings, hold periodic hearings to monitor progress and determine whether prosecution should resume, review the treatment providers’ progress reports, file disposition records, and collaborate with various public agencies and private entities. Ongoing costs for these activities are unknown but would be significant.

This bill also requires the defense to provide reports from the treatment provider to the court and the prosecution on the defendant’s progress in the diversion program at least every six months for up to two years (the maximum term of diversion). To the extent that a county mental health agency is the treatment provider, it would be tasked with drafting and submitting the periodic reports. The courts and local prosecutors would, in turn, be required to review these reports. By increasing the duties of county mental health agencies, to the extent that they accept referral, and local prosecutors, this bill would impose a higher level of service. The magnitude of costs would be dependent on the volume of defendants participating in these programs, the frequency of reports submitted, and the time required to compile and review the reports.

To the extent this bill results in the successful completion of treatment programs by defendants, it could result in significant future cost savings to the criminal justice system. By diverting misdemeanor and realigned felony offenders from prosecution and keeping potential convictions off records, this bill not only potentially lessens and avoids criminal proceedings and saves local incarceration and supervision costs but also removes barriers to community participation and the ability to potentially secure stable employment for these individuals. Indeed, at least one study has concluded that “a mental health court can reduce recidivism and violence by people with mental disorders who are involved in the criminal justice system.” (http://www.courtinnovation.org/sites/default/files/EffectivenessMentalHealthCourt.pdf)

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 8 Hearing Date: March 21, 2017

Subject: Diversion: Mental Disorders

HISTORY

Source: California Public Defenders Association

Prior Legislation: SB 1227 (Hancock), Chapter 658, Statutes of 2013

Support: American Friends Service Committee; California Attorneys for Criminal Justice; California Coalition of Women Prisoners; California Psychiatric Association; Drug Policy Alliance; Immigrant Legal Resource Center; National Association of Social Workers; Steinberg Institute; UCSF Psychiatry Resident Association

Opposition: California District Attorneys Association

PURPOSE

The purpose of this bill is to create a pretrial diversion program for defendants who commit a misdemeanor or jail felony who suffer from a mental disorder if the mental disorder played a significant role in the commission of the charged offense.

Existing law states that pretrial diversion refers to the procedure of postponing prosecution of an offense filed as a misdemeanor either temporarily or permanently at any point in the judicial process from the point at which the accused is charged until adjudication. (Pen. Code, § 1001.1.)

Existing law provides for diversion of misdemeanors when the defendant is a person with cognitive disabilities. (Pen. Code, § 1001.20 et seq.)

Existing law provides for diversion of non-driving under the influence (DUI) misdemeanor offenses. (Pen. Code, § 1001 et seq., Pen. Code, § 1001.50 et seq.)

Existing law provides for diversion of bad check cases. (Pen. Code, § 1001.60 et seq.)

Existing law establishes the Law Enforcement Assisted Diversion program for offenses related to controlled substances, alcohol and prostitution. (Pen. Code, § 1001.85 et seq.)

Existing law provides pretrial diversion for veterans who commit misdemeanors who are suffering from service-related trauma or substance abuse, as specified. (Pen. Code, § 1001.80 et seq.)

This bill creates a diversion program for defendants who suffer from a mental disorder if the mental disorder played a significant role in the commission of the charged offense.

This bill authorizes a court to grant pretrial diversion pursuant to the provisions in this bill if all of the following criteria are met:

• The court is satisfied that the defendant suffers from a mental disorder, as specified, proven by evidence provided by the defense which may take the form of an opinion of a licensed psychiatrist or psychologist, records of prior psychiatric hospitalizations, evidence that the defendant receives Federal Supplemental Security Income benefits, or any other reliable evidence;
  
• The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, or records by qualified medical experts, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense;
  
• The court is satisfied that the defendant would benefit from mental health treatment; and,
  
• The defendant consents to diversion and waives his or her right to a speedy trial.

This bill defines “pretrial diversion” to mean the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication to allow the defendant to undergo mental health treatment.

This bill requires the defense to arrange, to the satisfaction of the court, for a program of mental health treatment utilizing existing inpatient or outpatient mental health resources.

This bill states that the treatment may be procured using private or public funds, but a referral may be made to a county mental health agency only if that agency has agreed to accept responsibility for the treatment of the defendant and mental health services are provided only to the extent that resources are available and the defendant is eligible for those mental health services.

This bill requires the defense to provide reports to the court and the prosecutor from the divertee’s mental health provider on the divertee’s progress in the diversion program not less than every six months.

This bill provides that if it appears to the court that the divertee is performing unsatisfactorily in the assigned program, or that the divertee is not benefiting from the treatment and services provided pursuant to the diversion program, the court shall, after notice to the divertee, hold a hearing to determine whether the criminal proceedings should be reinstituted.

This bill specifies that that period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.

This bill states that if the divertee has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed. Upon dismissal of the charges, a record shall be filed with the Department of Justice (DOJ) indicating the disposition of the case diverted pursuant to this section. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed never to have occurred. The divertee who successfully completes the diversion program may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified.

This bill specifies that upon successful completion of diversion, the divertee shall be advised that regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by DOJ in response to any peace officer application request.

This bill states that a finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of diversion may not be used in any other proceeding without the defendant’s consent.

COMMENTS

1. Need for This Bill

According to the author:

Roughly a third of inmates in California’s jails suffer from serious mental illness. At least one study has concluded that California’s jail system has become de facto the largest mental health service provider in the United States, despite being ill-equipped to do so. In the last decade alone, lawsuits resulting from jail overcrowding and inmate death or injuries relating to inadequate mental health care or mistreatment of the mentally ill have cost California hundreds of millions of dollars. (See e.g., Estate of Duran v. Chavez (2015) 2015 WL 8011685 [a lawsuit stemming from the death of a mentally ill inmate who died after guards pepper-sprayed him in his tracheotomy hole while he was on suicide watch]; Brown v. Plata (2011) 563 U.S. 493, 517 [Supreme Court finding that California’s prison over-crowding has resulted in inadequate care and the cruel and unusual treatment of mentally ill incarcerated Californians].)

One reason for the constant jailing of mentally ill Californians is that under current law, trial courts have little ability to rehabilitate mentally ill Californians charged with even minor criminal offenses, without first convicting them of the underlying offense, and thereby damaging their prospects for future employment and housing. For example, even where the defendant’s offense is clearly a product of mental illness, a court cannot order mental health treatment, relevant counselling, or adherence to a medication regime unless the person suffering from mental illness is first convicted, and then placed on probation or sent to jail at county expense.

. . . .

The proposed bill would grant trial courts the discretion to offer diversion to defendants who suffer from mental illness when charged with low level offenses, after a showing that mental illness played a significant role in the commission of the underlying offense, and that the defendant would benefit from mental health treatment.

In essence, if appropriate, a court may (but is not required to) impose the same rehabilitative probationary conditions on a defendant it would have imposed had the defendant been convicted (including that the defendant comply with a mental health treatment plan, obey all laws and, if possible, make restitution to any victims), with the added incentive that successful completion of diversion would result in dismissal of the criminal case, without the permanent detriment of a criminal record.

Because such diversionary sentences take advantage of existing community resources for the mentally ill, research suggests that such sentences will save counties money in the short-term on reduced trial and incarceration costs, and in the long-term based on reduced recidivism rates.^[1] Importantly, because the diversionary sentence authorized under this bill relies entirely on pre-existing and available space in community based mental health treatment programs, counties will not be required to create or pay for new treatment facilities or programs.

2. Diversion of Defendants with Mental Disorders

Diversion is the suspension of criminal proceedings for a prescribed period of time with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume, however, a hearing to terminate diversion is required.

This bill creates a diversion program for defendants whose mental disorder played a significant role in the commission of the charged offense. The eligible offenses are misdemeanors and jail felonies. In determining eligibility, the court must be satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, or post-traumatic stress disorder. Evidence of the defendant’s mental disorder must be presented by the defense and may come in the form of an opinion by a licensed psychiatrist or psychologist, records of prior psychiatric hospitalizations, evidence that the defendant receives federal Supplemental Security Income benefits, or any other reliable evidence.

The court must also find that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the charged offense and that the defendant would benefit from mental health treatment. The defense is responsible for arranging for a program of mental health treatment and for providing progress reports to the court not less than every six months. A defendant may not be diverted for a period of time longer than two years under this program.

If a defendant successfully completes the diversion program then the arrest will be deemed never to have occurred and he or she can say she was never arrested or diverted, unless he or she is applying to be a peace officer. If it appears that the defendant is not performing satisfactorily in the diversion program, the court must hold a hearing to determine whether criminal proceedings should be reinstituted.

The goal of the diversion program created by this bill is to address the population of jail inmates who suffer from a mental disorder whose incarceration often leads to worsening of their condition and in some cases suicide. This bill authorizes the court to order treatment early in the process rather than waiting for the disposition of the case where the defendant may be facing the possibility of prolonged incarceration or re-arrest upon release. Because diversion does not result in a conviction, once a defendant completes diversion he or she would not be foreclosed from housing and employment opportunities.

3. Population of Inmates Suffering from a Mental Disorder is Growing

According to several reports, the population of inmates in county jails and in state prisons has increased over the years. A Los Angeles Times article from June 2016 reported that “the number of mentally ill inmates has grown in both county jails and state prisons, although overall inmate populations have shrunk. In L.A. County jails, the average population of mentally ill inmates in 2013 was 3,081. As of mid-May it was 4,139, a 34% increase.

“In the state prison system, the mentally ill inmate population was 32,525 in April 2013, making up 24.5% of the overall population. As of February, according to a recently released monitoring report, the overall population had fallen by 5,230 while the mental health population had grown by 4,275, and made up 29% of the total population.” (Sewell, Mentally ill inmates are swamping the state's prisons and jails. Here's one man's story (June 19, 2016) Los Angeles Times see full article at < http://www.latimes.com/local/california/la-me-mentally-ill-inmate-snap-story.html> [as of Mar. 2, 2017].)

4. Pending Litigation on the Issue of Diverting DUI Offenses

Under existing law, there is a general prohibition against diverting DUI offenses. (Veh. Code, § 23640, Pen. Code, §§ 1001.2 and 1001.51.) In 2014, the Military Diversion program was enacted. (SB 1227, Hancock, Chapter 658, Statutes of 2013.) Pursuant to the provisions of the bill, a veteran or member of the United States military could have a misdemeanor charge diverted if he or she is suffering from trauma, substance abuse, or mental health problems as a result of service in the military. (Pen. Code, § 1001.80, sub. (a).) The new law did not specifically state whether DUI offenses could be diverted under the Military Diversion program.

As a result of the conflict, there was a split of authority on whether the Legislature intended for the general prohibition against diverting DUI offenses to apply to persons in the Military Diversion program. In People v. VanVleck (2016) 2 Cal.App.5th 355, the Fourth District Court of Appeal held that persons charged with driving under the influence offenses cannot obtain diversion under Penal Code §1001.80. The VanVleck court applied the rule that a specific statute controls over a general statute and found that since the Military Diversion program applies to all misdemeanors while Vehicle Code section 23640 applies only to DUIs, the Vehicle Code section is the specific statute and controls. (Id. at 365.) The court stated that if the Legislature wanted to specifically include DUIs, it could have done so, but because it did not the general prohibition bars diversion of DUIs. (Id. at 367.)

Conversely, in Hopkins v. Superior Court (2016) 2 Cal. App. 5th 1275, review granted November 16, 2016, S237734, the Second District Court of Appeal held that the Military Diversion program function as an implied repeal of the prohibition in Vehicle Code section 23640 against pretrial diversion for defendants charged with DUIs, thus a person who otherwise qualifies for the program could receive pretrial diversion for a DUI. The Hopkins court decided that the general versus specific statute rule of statutory construction was not helpful to its analysis because either statute could be determined to be the specific depending on what is focused upon. Since, according to the court, it would be an arbitrary choice on which focus to use, the court decided that it would rely on the rule that a later enacted statute supersedes an earlier one. (Id. at 1283-1284). The court urged the Legislature to amend the statutes authorizing the Military Diversion program to express its intent with regard to military diversion in DUI cases. (Id. at 1278.)

The California Supreme Court has granted review of the conflicting cases. There is also a bill pending before this committee that would specify that, notwithstanding the prohibition in Vehicle Code section 23640, misdemeanor DUI offenses may be eligible for pretrial diversion under the Military Diversion program. (SB 725, Jackson.)

Should this bill specify whether DUIs may be eligible for pretrial diversion?

5. Support

According to the Steinberg Institute:

Under this bill, before diversion can be considered by the court, the defense must present reliable evidence regarding the underlying mental health condition, its connection to the charged offense, and the likelihood that the defendant will benefit from treatment in a suitable program. Research shows that Californians who participate in diversion programs are less likely to re-offend, and more likely to access housing, find employment, and contribute to their communities.

We believe this bill furthers the Governor and Legislatures goals of reducing jail and prison populations, while simultaneously improving outcomes for this vulnerable population. Given the stigma around mental illness and lack of community treatment options, many individuals first recognition of their mental illness and opportunity for treatment is during their interaction with the criminal justice system. This bill would ensure that we prioritize treating the underlying problem, and not the symptoms, and better ensure that individuals receive the care they need.

6. Opposition

The California District Attorneys Association argues:

[L]eaving the “proof” of such mental illness to whomever the defense wishes to pay to render such an opinion invites a cottage industry and potential abuse. While the bill says nothing about whether the prosecution may attempt to rebut the claim, even if it could, the cost to the counties would be tremendous. In Los Angeles County alone, there were 284,433 misdemeanors filed in FY 2014-15. SB 8 would allow every one of those defendants (plus a sizeable cohort of 1170(h) felons) to make the case for diversion based on any of the mental disorders listed in the DSM. In addition to the time this would take up front, because this is pre-plea diversion, the court would have to leave all of these cases open for two years while the defendant participates in the program.

If a person fails the diversion program, the fact that this is pre-plea diversion makes the case difficult and potentially impossible to prosecute two years later, when witnesses move, lose interest, or suffer memory loss as the case ages with no movement toward resolution. In fact, the amount of time since the crime’s commission could be far greater than two years given the amount of time it takes for the defendant to convince the court to grant the diversion, and the two-year maximum length of the diversion program.

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1. See http://www.courtinnovation.org/sites/default/files/EffectivenessMentalHealthCourt.pdf [noting that participation in mental health treatment through a court authorized diversion plan reduced recidivism rates.] ↑