California courts are becoming more conscious of the role of mental health and mental illness for defendants and offenders. Sometimes, due to the nature of certain crimes, the court may find it necessary for a defendant to undergo a mental health evaluation, such as in certain sex crimes cases. 

Additionally, California law requires every inmate to undergo a mental health evaluation within their first year of imprisonment. Mental health treatment or monitoring may be a court-ordered condition of parole for “mentally disordered offenders” who suffer from severe mental disorders that caused them to commit certain felony crimes. In other types of cases, it might be possible for a defendant to receive mental health treatment through the California Mental Health Diversion program. 

Read below for more information on mental health evaluations and treatment for California defendants and inmates. If you have questions or concerns regarding a particular individual or case, it is recommended that you contact a California criminal defense attorney for assistance.

Mental health evaluations in sex crimes cases

According to California Penal Code 288.1, in certain sex crimes cases, the court is required to consider a defendant’s mental health status before granting probation.

PC 288.1 applies in cases with “a lewd or lascivious act” involving a child under the age of 14. Examples of such crimes include:

  • Lewd acts with a child – Penal Code 288 PC
  • Rape – Penal Code 261 PC
  • Sexual battery – Penal Code 243.4 PC

While the court is not required to order a mental health evaluation, it may choose to do so if the defendant’s mental health status could be a relevant factor for denying probation. The report that is ordered (referred to as a “Penal Code 288.1 Report”) must be issued by either:

  • A psychiatrist, or
  • A licensed psychologist who has at least five years of specific postgraduate experience in the diagnosis and treatment of psychological disorders, or a doctoral degree in psychology

Prior to issuing the report, the psychiatrist or psychologist will evaluate the defendant’s history as well as the nature and circumstances of the offense in order to determine whether they pose a threat to the public, specifically to children. 

The costs of issuing the report are usually paid by the defendant. However, if he or she is unable to afford the costs, the court may appoint the mental health professional and incur the costs.

‘Mentally disordered offenders’

Under California law, all inmates must undergo a mental health evaluation within their first year of incarceration. 

Inmates who fit a specific set of criteria may be given the status of a “mentally disordered offender (MDO),” which requires them to have their mental health monitored by a professional as a condition of being released on parole. The purpose of the MDO Law and required mental health treatment and monitoring is to:

  1. Provide treatment for prisoners who suffer from mental illness.
  2. To protect society from offenders who suffer from treatable mental disorders that cause them to pose a threat to others.

How is a ‘mentally disordered offender’ legally defined?

In order for an inmate to be assigned MDO status, he or she must meet all of the following criteria:

  • The inmate has been given a determinate prison sentence as a result of a specific violent crime conviction such as (but not limited to) a sexual offense, arson, or kidnapping.
  • The inmate has been diagnosed with a severe mental illness or disorder that requires treatment. 
  • A qualified mental health professional has certified that the inmate poses a substantial threat of harm to others as a result of his or her mental illness or disorder.
  • The severe mental illness or disorder was a cause or aggravating factor in the relevant violent crime.
  • The inmate received treatment for the mental illness or disorder for at least 90 days during the year prior to his or her release or parole.

What are the treatment requirements for mentally disordered offenders?

If an inmate is given the status of a mentally disordered offender, he or she is required to receive mental health treatment as a condition of parole. If the inmate given MDO status does not agree to this condition, parole will be denied. 

The parolee is first required to receive inpatient treatment at either Atascadero State Hospital (for male parolees) or Patton State Hospital (for female parolees). 

When medical professionals believe the parolee has received adequate inpatient treatment, he or she may begin receiving outpatient treatment. If after 60 days of inpatient care the parolee has not been placed in outpatient care, he or she may petition the court to make the change.

Treatment may be continuously ordered by the court in one-year increments if a judge or jury finds that the parolee continues to pose a threat to the public as a result of his or her mental health issues.

The Lanterman-Petris-Short Act

In some cases, an inmate may not meet the specific criteria to be given MDO status but may still suffer from a severe mental disorder that the justice system and mental health professionals believe requires mandatory treatment as a condition of parole. 

Under the Lanterman-Petris-Short Act, the Board of Parole Hearings may require involuntary treatment of a parolee who is severely disabled due to a mental disorder. As in the case of mentally disordered offenders, the parolee may be reevaluated, and the treatment period extended in increments of 72 hours to one year. 

California mental health diversions

As part of California Penal Code 1001.36 PC, a qualified criminal defendant can receive mental health treatment at any point in his or her case, prior to sentencing, through “mental health diversion.” 

A mental health diversion is a type of pretrial diversion which allows the defendant’s case to be postponed while he or she participates in a treatment program. If the defendant completes the program successfully, his or her charges will be dropped and the arrest record sealed.

Below are answers to some of the most common questions about the California mental health diversion program.

Do I qualify for mental health diversion under PC 1001.36?

Defendants who have been charged with either a misdemeanor or felony offense may request a mental health diversion. In order to qualify, he or she must meet all of the following criteria:

  • The defendant suffers from a recognized mental health condition aside from pedophilia, borderline personality disorder, or an antisocial personality disorder
  • The defendant’s mental health disorder was a significant factor in their committing the crime for which they have been charged
  • A qualified mental health expert agrees that the defendant is a good candidate for mental health treatment and that he or she could be treated effectively
  • The court believes that the defendant will not pose a significant threat to the public
  • The defendant consents to a mental health diversion
  • The defendant waives his or her right to s speedy trail (as the diversion postpones the trial)
  • The defendant agrees to comply with the treatment in order for the diversion to continue

How does a mental health diversion treatment program work?

Under Penal Code 1001.36, the treatment for a mental health diversion

  1. Can be inpatient or outpatient
  2. Lasts for a maximum duration of two years

The mental health provider of the treatment program is required to submit progress reports to the court, defense and prosecution on a regular basis. If the defendant is charged with a new felony offense, demonstrates a propensity for violence or if certain other events take place, a hearing will be held to determine if:

  • The treatment plan needs to be changed
  • The criminal case brought against the defendant should be reinstated and continued, or
  • Possible conservatorship proceedings should be held

After successful completion of the treatment plan, the defendant’s charges will be dropped. A successful completion of a treatment plan meets the following criteria:

  • The defendant has not incurred any new criminal charges unrelated to or not caused by the defendant’s mental health condition
  • The defendant complied with the requirements set forth by the court
  • The defendant hand his or her healthcare providers have instituted a continued long-term health plan 

Do I have to pay for mental health treatment under PC 1001.36?

Under PC 1001.36, a defendant’s mental healthcare treatment can come from public or private funds. If a defendant is unable to afford private treatment, the court may refer them to a county mental health agency or collaborative court and their treatment will be funded. 

Will a mental health diversion seal my criminal record?

When a defendant successfully completes their mental health diversion treatment plan, the charges against them are dismissed and the arrest record is sealed. This means that they cannot be used against the defendant in gaining future employment, certifications, or licenses. 

However, in the specific circumstances below, a defendant’s records of arrest and participation in a mental health diversion program may be legally accessed and used:

  • A judge may access the records in order to determine whether a mental health diversion is appropriate in a future criminal case brought against the defendant
  • Criminal justice agencies may access sealed records
  • Records may be used in the defendant’s continued mental health treatment 
  • The defendant is required to disclose the arrest and the California Department of Justice will disclose the arrest if he or she applies to become a peace officer (such as a police officer)
  • Immigration court may consider the arrest under certain circumstances, particularly if the defendant has admitted to certain facts or pleaded guilty to a deportable offense

Whether you or someone you care about is undergoing a mental health evaluation as a condition of a legal case or you have questions or concerns about mental health issues for a defendant or inmate, a California defense attorney can offer the advice and guidance you need. 

With my decades of experience representing clients and my extensive knowledge of California criminal law, I can be the ally you need to look out for your best interests, whatever legal challenges you may be facing. Contact my office today for your free consultation – 800-834-6434.