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SB-215 Diversion: mental disorders.(2017-2018)

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Date Published: 08/06/2018 02:00 PM
SB215:v93#DOCUMENT

Amended  IN  Assembly  August 06, 2018
Amended  IN  Assembly  June 14, 2018
Amended  IN  Senate  January 25, 2018
Amended  IN  Senate  January 09, 2018
Amended  IN  Senate  January 03, 2018
Amended  IN  Senate  March 06, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 215


Introduced by Senator Beall
(Coauthors: Senators Anderson, Bradford, Hertzberg, Nielsen, Portantino, Skinner, Stone, Wieckowski, and Wiener)

February 01, 2017


An act to add Chapter 2.9D (commencing with Section 1001.82) to Title 6 of Part 2 amend Section 1001.36 of the Penal Code, relating to diversion.


LEGISLATIVE COUNSEL'S DIGEST


SB 215, as amended, Beall. Diversion: mental disorders.
Existing law authorizes a court to grant pretrial diversion, for a period no longer than 2 years, to a defendant suffering from a mental disorder, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, in order to allow the defendant to undergo mental health treatment. Existing law conditions eligibility on, among other criteria, a court finding that the defendant’s mental disorder played a significant role in the commission of the charged offense. Existing law requires, if the defendant has performed satisfactorily in diversion, that the court dismiss the defendant’s criminal charges, with a record filed with the Department of Justice indicating the disposition of the case diverted, that the arrest is deemed never to have occurred, and requires the court to order access to the record of the arrest restricted, except as specified.
This bill would require the court, upon request, to conduct a hearing to determine whether restitution is owed to any victim as a result of the diverted offense and, if owed, to order its payment during the period of diversion. The bill provides that a defendant’s inability to pay restitution due to indigence or mental disorder would not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion. By increasing the duties of local prosecutors and public defenders, this bill would impose a state-mandated local 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 defendant’s 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 defendant’s 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 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. For specified offenses, the bill would condition granting diversion on the consent of the prosecution. Specified driving-under-the-influence offenses would not be eligible for diversion under these provisions. 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 divertee’s mental health provider to provide reports on the defendant’s progress to the court, the defense, and the prosecution not less than every month if the offense is a felony, and every 3 months if the offense is a misdemeanor, as specified. 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 and the records of the arrest be restricted, as specified, 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.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1001.36 of the Penal Code is amended to read:

1001.36.
 (a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).
(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:
(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, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In 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.
(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, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense.
(3) In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.
(4) The defendant consents to diversion and waives his or her right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.
(5) The defendant agrees to comply with treatment as a condition of diversion.
(6) The court is 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. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(c) As used in this chapter, “pretrial diversion” means 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, subject to all of the following:
(1) (A) 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.
(B) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity 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 services.
(2) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.
(3) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.
(4) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(d) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:
(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3) The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion.
(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A) The defendant is performing unsatisfactorily in the assigned program.
(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
(e) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (h). The defendant who successfully completes diversion 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 in subdivision (g).
(f) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(g) The defendant shall be advised that, regardless of his or her completion of diversion, both of the following apply:
(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (f), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(h) 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 participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(i) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SECTION 1.

The Legislature finds and declares all of the following:

(a)Despite never being designed for the treatment or housing of those with mental health needs, jails have become the de facto mental health facilities in many communities across the country.

(b)Untreated mental health conditions frequently result in chronic homelessness and an inability to find stable employment or housing, increasing the likelihood that those suffering from mental illness come into contact with law enforcement.

(c)For many people suffering from mental disorders, incarceration only serves to aggravate preexisting conditions and does little to deter future lawlessness.

(d)For people who commit offenses as a direct consequence of a mental disorder, diversion into treatment is often not only more cost effective, but also more likely to protect public safety by reducing the likelihood that a person suffering from a mental health disorder reoffends in the future.

(e)Courts, as one of the first points of contact between the mentally ill and the state, can serve a useful function in identifying defendants with mental disorders and connecting them to existing services, thereby reducing recidivism.

SEC. 2.Chapter 2.9D (commencing with Section 1001.82) is added to Title 6 of Part 2 of the Penal Code, to read:
2.9D.Diversion of Low-Level Offenders Whose Offense is a Product of Mental Illness
1001.82.

(a)(1)Notwithstanding any other law, except as specified in paragraph (2), in any case before the court on an accusatory pleading alleging the commission of a misdemeanor offense or felony offense punishable in a county jail pursuant to subdivision (h) of Section 1170, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if he or she meets all of the requirements specified in subdivision (b).

(2)Diversion is not available under this section without the consent of the prosecution for any of the following offenses:

(A)Any felony, with the exception of an offense specified in Title 13 (commencing with Section 450) or Title 14 (commencing with Section 594) of Part 1 of this code, Division 10 (commencing with Section 11000) of the Health and Safety Code, or Section 10851 of the Vehicle Code, including a conspiracy to commit these offenses or acting as an accessory to their commission.

(B)Any offense involving the unlawful use or unlawful possession of a firearm.

(C)A violation of Section 192 or 192.5.

(D)An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.

(E)A violation of Section 273a, 273.5, 368, 597, or 646.9.

(F)An offense resulting in damages of more than five thousand dollars ($5,000).

(G)An offense that occurs within 10 years of three separate referrals to diversion pursuant to this section. A grant of diversion on multiple charges filed under the same case number, or stemming from the same incident, shall constitute a single referral to diversion under this section.

(3)A violation of Section 23152 or 23153 of the Vehicle Code is not eligible for diversion pursuant to this section.

(4)It is the intent of the Legislature that the consent of the prosecution be required prior to a court granting diversion for any offense listed in subparagraphs (A) to (G), inclusive, of paragraph (2). If the provisions of paragraph (2) related to the consent of the prosecutor are invalidated for any reason, the offenses listed in subparagraphs (A) to (G), inclusive, of paragraph (2) shall not be eligible for diversion pursuant to this section.

(b)Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:

(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, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis by a qualified expert. In opining that a defendant suffers from a qualifying disorder, the expert may rely on an examination of the defendant, medical records, evidence that the defendant receives federal supplemental security income benefits, arrest reports, 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. 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, reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, 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.

(4)The defendant consents to diversion and waives his or her right to a speedy trial.

(c)As used in this chapter, “pretrial diversion” means 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, subject to 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. Before approving a proposed treatment program, the court shall consider the requests of the defense, the requests of the prosecution, and the needs of the divertee and the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment 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 services. Reports shall be provided to the court, the defense, and the prosecutor by the divertee’s mental health provider on the divertee’s progress in treatment not less than every month if the offense is a felony, and every three months if the offense is a misdemeanor. A court shall consider setting more frequent progress report dates upon request of the prosecution or the defense, or upon the recommendation of the divertee’s mental health treatment provider.

(2)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, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstituted or whether the treatment program should be modified.

(3)The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.

(4)Upon request, the court shall conduct a hearing to determine whether restitution within the meaning of Section 1202.4 is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.

(d)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. A court may conclude that a divertee has performed satisfactorily if, in the court’s judgment, the divertee has substantially complied with the requirements of the treatment program, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. 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, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (e) and (f). 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 in subdivision (e).

(e)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. Notwithstanding subdivision (d), this section does not relieve the divertee who successfully completes diversion pursuant to this section 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, as defined in Section 830. The divertee shall be advised of the requirements of this subdivision upon the successful completion of diversion.

(f)A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records created as a result of diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of arrests for which the defendant was granted diversion under this section.

SEC. 3.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.