Criminal Forensic Evaluations

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Mental Health Diversion Evaluations

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California Penal Code § 1001.36 authorizes the court, in its discretion, to order pretrial mental health diversion for eligible defendants charged with qualifying misdemeanor or felony offenses that are not excluded by statute, upon consideration of the positions of the defense and the prosecution and a determination that statutory eligibility and suitability criteria are satisfied.

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Eligibility requires that the defendant suffer from a DSM-diagnosed mental disorder, excluding antisocial personality disorder and pedophilia, and that the mental disorder was a significant motivating, causal, or contributing factor in the commission of the charged offense. The court must further find that the defendant’s symptoms are amenable to mental health treatment, that the defendant consents to diversion and agrees to comply with treatment, and that the defendant does not pose an unreasonable risk to public safety if treated in the community.

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A Mental Health Diversion Evaluation is a forensic psychological assessment conducted for legal purposes to assist defense counsel and the court in evaluating the statutory requirements set forth in Penal Code § 1001.36. Evaluations may include a forensic clinical interview, review of relevant records, collateral information when available, and psychological testing when clinically and legally indicated. The resulting report addresses diagnostic formulation, functional impairment, nexus between mental health symptoms and the charged conduct, treatment responsiveness, and risk-related considerations.

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Reports are prepared in neutral, objective, and legally appropriate language, organized to correspond with Penal Code § 1001.36, and structured to assist the court in making informed diversion determinations. Certain offenses are expressly excluded from diversion under the statute. Upon successful completion of diversion, criminal charges are dismissed, and the arrest may be deemed never to have occurred, subject to statutory limitations and exceptions.

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Statutory Criteria Addressed in the Evaluation

 

Penal Code § 1001.36(a)–(c)

The Mental Health Diversion Evaluation is structured to address the statutory eligibility and suitability factors the court is required to consider, including:

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§ 1001.36(a) — Court Discretion

• Presentation of objective forensic findings to assist the court in exercising its discretion after consideration of the positions of the defense and prosecution

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§ 1001.36(b)(1) — Qualifying Mental Disorder

• DSM-consistent diagnostic formulation

• Documentation of current or recent diagnosis and treatment history

• Review of medical, psychiatric, and collateral records supporting the diagnosis

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§ 1001.36(b)(2) — Nexus to Charged Offense

• Analysis of whether the mental disorder was a motivating, causal, or contributing factor in the alleged offense

• Consideration of contemporaneous symptoms, behavioral observations, and relevant documentary evidence

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§ 1001.36(c)(1) — Treatment Responsiveness

• Clinical opinion regarding the amenability of symptoms to mental health treatment

• Identification of recommended level of care and treatment modalities

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§ 1001.36(c)(2)–(3) — Consent and Treatment Compliance

• Evaluation of the defendant’s capacity and willingness to consent to diversion and comply with treatment conditions

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§ 1001.36(c)(4) — Public Safety Considerations

• Assessment of risk and protective factors relevant to community-based treatment

• Consideration of violence history, current charged offense, treatment structure, and stabilizing supports

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