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Being arrested turns lives upside down, and includes a future of an investigation into their alleged wrongdoing, as well as a trial in which details of their life become public knowledge, and a potential long-term future of incarceration. Retaining the services of an experienced criminal defense attorney can be instrumental to minimizing the effect of these issues. In most cases, the arrestee knows and understands the situation – that he/she is being accused of committing a crime. However, some members of society may not truly comprehend the present situation, and, may not even comprehend that the act he/she is accused of committing was wrong. A recent article in the Chico Enterprise-Record illustrates the increasing percentage of inmates in California jails and prisons who are mentally incapacitated, making the California penal system a de facto mental institution. California does provide for a Diversion Program for those with mental incapacity, and a discussion of this Program will follow below, along with a discussion of the legal defense of insanity.


California’s Mental Health Diversion Program


California’s Mental Health Diversion Program, a pretrial diversion program, allows some criminal defendants to receive mental health treatment when they are accused of a crime. Pretrial diversion, which may be requested at any point in a criminal proceeding before a defendant is sentenced, allows an eligible defendant to postpone further action in his/her case in order to participate in a treatment program. Upon the successful completion of a pretrial diversion treatment program, the charges against the defendant will be dismissed. The record of the arrest will be sealed, and it will be as if the arrest had never happened.


To be eligible for the Mental Health Diversion Program, the defendant must provide evidence of each of the following conditions:


  • He/she must have been diagnosed with a mental health condition other than antisocial personality disorder, borderline personality disorder, or pedophilia;
  • The diagnosed mental health disorder must have played a significant role in the commission of the charged offense;
  • Based on the opinion of a qualified mental health professional, the defendant would respond to mental health treatment;
  • He/she not only consents to the diversion program, he/she waives his/her right to a speedy trial and agrees to comply with the mental health treatment; and
  • The court believes that he/she will not pose an unreasonable risk of danger to public safety.


Probably the biggest obstacle of the elements noted above is being able to prove that the defendant has been diagnosed with a mental health disorder. To successfully show this element, the defense must present evidence of a recent diagnosis by a qualified mental health expert. The expert may rely on any relevant evidence, including his/her examination of the defendant, the defendant’s medical records, and even the arrest report, which may illustrate the state of mind of the defendant.


Not Guilty by Reason of Insanity


If the pretrial program is not available, the defendant can offer a legal defense of insanity, which, if accepted, means that he/she cannot be found guilty of a crime because he/she was legally insane when alleged to have committed it. Under California’s insanity defense, a defendant is considered legally insane if either he/she:


  • Did not understand the nature of the criminal act; or
  • Did not understand that what he/she was doing was morally wrong.


Again, mental health evidence, most likely from a mental health professional, will help to establish the defendant’s perception of reality, both at the time of the crime and during the criminal trial.


Speak to a Criminal Defense Attorney


If you have been arrested on suspicion of committing a crime, contact the criminal defense attorneys at Manshoory Law Group, APC as soon as possible. The attorneys at our office have years of experience in criminal defense law, including how mental incapacity affects the ability of the arrestee to understand the circumstances of his/her arrest. After understanding your specific circumstances, we will work to provide the most effective defense possible. The attorneys here are available 24/7 to take your call. Do not wait; contact us today for an initial consultation.




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