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Diversion for Defendants with Cognitive or Developmental Disabilities

As of 2018, California has allowed people charged with certain crimes that occurred because they suffer from specific mental health disorders participate in a “diversion” program, whereby, if they participate in therapy and medical treatment to address the mental health issue, their case can be dismissed and sealed from their criminal history. (See Cal. Penal Code §§ 1001.35-1001.36). This has been a great benefit to assist people who end up in the criminal justice system as a result of unaddressed mental health issues get the treatment they need while also avoid the negative impact of a criminal conviction.

But the law also affords the benefits of diversion to individuals who do not have a mental health disorder diagnosis, but rather suffer from a distinct cognitive or developmental disability, that seeks to provide the care these individuals need while similarly allowing them to avoid the negative effects of a criminal prosecution and conviction. (See Cal. Penal Code §§ 1001.20-1001.34).

Definitions and the Diversion Scheme for Criminal Defendants Suffering from Cognitive or Developmental Disabilities

The scheme for Cognitive and Developmental Diversion is contained within Penal Code sections 1001.20 and 1001.34. Under the Code, a “developmental disability” is defined as, “a disability as defined in subdivision (a) of Section 4512 of the Welfare and Institutions Code and for which a regional center finds eligibility for services under the Lanterman Developmental Disabilities Services Act.” (Cal. Penal Code § 1001.20(a)). Under the Code, a defendant believed to be suffering from a developmental disability, must agree to being evaluated by the County regional center to determine fitness for diversion, and must also waive their speedy trial rights. (Cal. Penal Code § 1001.22). The Court will then order three agencies to prepare evaluation reports regarding the defendant’s eligibility and fitness for such diversion: the County regional center, the District Attorney’s Office, and the Probation Department. (See Cal. Penal Code § 1001.22(a)-(c)).

Regional Center Report

A regional center is “a regional center for the developmentally disabled established under the Lanterman Developmental Disabilities Services Act that is organized as a private nonprofit community agency to plan, purchase, and coordinate the delivery of services that cannot be provided by state agencies to developmentally disabled persons residing in a particular geographic catchment area, and that is licensed and funded by the State Department of Developmental Services.” (Cal. Penal Code § 1001.20(c)). Under the Code, the regional center where the defendant is being prosecuted must evaluate the defendant and, within 25 days of the Court’s order:

[S]hall include a determination as to whether the defendant has a developmental disability and is eligible for regional center diversion-related treatment and habilitation services, and the regional center shall also submit to the court a proposed diversion program, individually tailored to the needs of the defendant as derived from the defendant’s individual program plan pursuant to Section 4646 of the Welfare and Institutions Code, which shall include, but not be limited to, treatment addressed to the criminal offense charged for a period of time as prescribed in Section 1001.28. The regional center’s report shall also contain a statement whether the proposed program is available for the defendant through the treatment and habilitation services of the regional centers pursuant to Section 4648 of the Welfare and Institutions Code.

Cal. Penal Code § 1001.22(a).

Such treatment and rehabilitation services includes, but is not limited to, “specialized services or special adaptations of generic services, directed toward the alleviation of developmental disability or toward social, personal, physical, or economic habilitation or rehabilitation of an individual with a developmental disability, and includes, but is not limited to, diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, physical, occupational, and speech therapy, training, education, sheltered employment, mental health services, recreation, counseling of the individual with this disability and of the individual’s family, protective and other social and sociolegal services, information and referral services, follow-along services, and transportation services necessary to ensure delivery of services to persons with developmental disabilities.” (Cal. Penal Code § §1001.20(b)).

District Attorney Report

The District Attorney must also prepare a report regarding a defendant suffering from cognitive or developmental disabilities within 30 Court days of the Court’s order for evaluation, including:

(1) A statement of whether the defendant’s record indicates the defendant’s diversion pursuant to this chapter within two years prior to the alleged commission of the charged divertible offense.

(2) If the prosecutor recommends that this chapter may be applicable to the defendant, the prosecutor shall recommend either a dual or single agency diversion program and shall advise the court, the probation department, the regional center, and the defendant, in writing, of that determination within 20 judicial days of the court’s order to prepare the report.

(3) If the prosecutor recommends against diversion, the prosecutor’s report shall include a declaration in writing to state for the record the grounds upon which the recommendation was made, and the court shall determine, pursuant to Section 1001.23, whether the defendant shall be diverted.

(4) If dual agency diversion is recommended by the prosecutor, a copy of the prosecutor’s report shall also be provided by the prosecutor to the probation department, the regional center, and the defendant within the above prescribed time period. This notification shall include all of the following:

(A) A full description of the proceedings for diversion and the prosecutor’s investigation procedures.

(B) A general explanation of the role and authority of the probation department, the prosecutor, the regional center, and the court in the diversion program process.

(C) A clear statement that the court may decide in a hearing not to divert the defendant and that the defendant may have to stand trial for the alleged offense.

(D) A clear statement that should the defendant fail in meeting the terms of the diversion, or if, during the period of diversion, the defendant is subsequently charged with a felony, the defendant may be required, after a hearing, to stand trial for the original diverted offense.

Cal. Penal Code § 1001.22(b).

Probation Department Report

Finally, the County Probation Department must also submit an evaluative report within 30 Court days of the Court’s evaluation order, including the following:

The probation department shall submit a report on specified aspects of the defendant’s case within 30 judicial days of the court’s order, to the court, to each of the other agencies involved in the case, and to the defendant. The probation department’s report to the court shall be based upon an investigation by the probation department and consideration of the defendant’s age, developmental disability, employment record, educational background, ties to community agencies and family, treatment history, criminal record if any, and demonstrable motivation and other mitigating factors in determining whether the defendant is a person who would benefit from a diversion-related treatment and habilitation program. The regional center’s report in full shall be appended to the probation department’s report to the court.

Cal. Penal Code § 1001.22(c).

Court’s Determination to Grant Diversion

Once the Court receives the three reports, it must determine if the defendant suffers from a cognitive or developmental disability. Once this criterion is met, the Court determines whether, if in consideration of all the information contained in the reports,  the defendant represents an undue risk to public safety and would benefit from such diversion. The Court then delineates how the diversion period should be facilitated and monitored by the Court:

(a) Upon the court’s receipt of the reports from the prosecutor, the probation department, and the regional center, and a determination by the regional center that the defendant does not have a developmental disability, the criminal proceedings for the offense charged shall proceed. If the defendant is found to have a developmental disability and to be eligible for regional center services, and the court determines from the various reports submitted to it that the proposed diversion program is acceptable to the court, the prosecutor, the probation department, and the regional center, and if the defendant consents to diversion and waives their right to a speedy trial, the court may order, without a hearing, that the diversion program be implemented for a period of time as prescribed in Section 1001.28.

(b) After consideration of the probation department’s report, the report of the regional center, the report of the prosecutor relating to the prosecutor’s recommendation for or against diversion, the defendant’s violence and criminal history, the relationship of the developmental disability to the charged offense, and the current charged offense, and any other relevant information, and 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 shall determine if the defendant shall be diverted under either dual or single agency supervision, and referred for habilitation or rehabilitation diversion pursuant to this chapter. If the court does not deem the defendant a person who would benefit by diversion at the time of the hearing, the suspended criminal proceedings may be reinstituted, or any other disposition as authorized by law may be made, and diversion may be ordered at a later date.

(c)  If a dual agency diversion program is ordered by the court, the regional center shall submit a report to the probation department on the defendant’s progress in the diversion program not less than every six months. Within five judicial days after receiving the regional center’s report, the probation department shall submit its report on the defendant’s progress in the diversion program, with the full report of the regional center appended, to the court and to the prosecutor. If single agency diversion is ordered by the court, the regional center alone shall report the defendant’s progress to the court and to the prosecutor not less than every six months.

Cal. Penal Code § 1001.23.

A period of diversion, “shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.” (Cal. Penal Code § 1001.28.) Upon the Court’s order admitting a defendant to diversion, “the diversion-related individual program plan shall be fully implemented by the regional centers upon court order and approval of the diversion-related treatment and habilitation plan.” (Cal. Penal Code § 1001.34).

Defendant’s Performing Unsatisfactorily on Diversion Cognitive or Developmental Disabilities

If a defendant granted diversion is not appearing to benefit from the Court-ordered programming:

[T]he court may hold a hearing and amend the program to provide for greater supervision by the responsible regional center alone, by the probation department alone, or by both the regional center and the probation department. However, notwithstanding the modification of a diversion order, the court may hold a hearing to determine whether the diverted criminal proceedings should be reinstituted if any of the following circumstances exists:

(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 the defendant unsuitable for diversion.

(4) The defendant’s performance in the diversion program is unsatisfactory.

(b) In cases of dual agency diversion, a hearing to reinstitute the diverted criminal proceedings may be initiated by either the court, the prosecutor, the regional center, or the probation department.

(c) In cases of single agency diversion, a hearing to reinstitute the diverted criminal proceedings may be initiated only by the court, the prosecutor, or the regional center.

(d) No hearing for either of these purposes shall be held unless the moving agency or the court has given the divertee prior notice of the hearing.

(e) Where the cause of the hearing is a subsequent charge of a felony against the divertee subsequent to the diversion order, any hearing to reinstitute the diverted criminal proceedings shall be delayed until such time as probable cause has been established in court to bind the defendant over for trial on the subsequently charged felony.

Cal. Penal Code § 1001.29

The defendant defend such allegations of violating diversion through his attorney. On the other hand, the defendant may also determine they do not want to participate in diversion any longer, as, “he or she may withdraw consent to further participate in the diversion program, and at such time as such consent is withdrawn, the suspended criminal proceedings may resume or such other disposition may be made as is authorized by law.” (Cal. Penal Code §  1001.30).

Protections of a Defendant Diverted under the Code

Given the vulnerability of the defendants that apply for and are admitted to  a grant of diversion for the cognitive or developmental disabilities, the Code specifically makes provisions to protect the Constitutional rights of such defendants so that evaluation for or participation in such diversion would not undermine the litigation of the criminal case if diversion is denied, or, if it is terminated unsuccessfully (Cal. Penal Code §§ 1001.24, 1001.25, 1001.26):


No statement, or information procured therefrom, made by the defendant to any probation officer, the prosecutor, or any regional center designee during the course of the investigation conducted by either the regional center or the probation department pursuant to this chapter, and prior to the reporting to the probation department of the regional center’s findings of eligibility and recommendations to the court, shall be admissible in any action or proceeding brought subsequent to this investigation.

Cal. Penal Code § 1001.24.


No statement, or information procured therefrom, with respect to the specific offense with which the defendant is charged, which is made to a probation officer, a prosecutor, or a regional center designee subsequent to the granting of diversion shall be admissible in any action or proceeding brought subsequent to the investigation.

Cal. Penal Code § 1001.25


In the event that diversion is either denied or is subsequently revoked once it has been granted, neither the probation investigation nor the statements or other information divulged by the defendant during the investigation by the probation department or the regional center shall be used in any sentencing procedures.

Cal. Penal Code § 1001.26.

Thus, statements made by a defendant to be evaluated for diversion, to help facilitate their programming in diversion, or in any way previously made by a defendant as a result of participation in diversion may not be used against them in Court should diversion not be granted, or if proceedings are reinstated after diversion is terminated as unsuccessful. This allows the defendant to feel free and empowered to participate in diversion candidly without fear that their statements may be used against them later on, to help facilitate the treatment process.

In addition, if diversion is granted, any bail bond the defendant may have posted will be exonerated so that they can be free of further premiums or duties to the bail company. (See Cal. Penal Code § 1001.27).

Benefits of Successful Participation on Diversion

If a defendant placed on diversion performs their programming “satisfactorily during the period of diversion, the criminal charges shall be dismissed at the end of the diversion period.” (Cal. Penal Code § 1001.31, emphasis added). The California Department of Justice must note the defendant’s participation on a grant of diversion, (Cal. Penal Code § 1001.32), and the defendant is entitled to thereafter deny any participation on diversion, arrest, or prosecution thereon:

(a) Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful completion of a 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 in subdivision (b). A record pertaining to an arrest resulting in successful completion of a 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.

(b) 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 the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her 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.

Cal. Penal Code § 1001.33.

Thus, diversion allows defendants suffering from cognitive or developmental disabilities to avoid prosecution and the negative results of a conviction if they successfully complete the programming developed by the Court, District Attorney, Probation, and defense attorney for their specific situation.

Disqualifications for Diversion

While diversion is a fantastic possible defense route for most defendants suffering from cognitive or developmental disabilities charged with crimes, not all cases are eligible for diversion when the charges faced by the defendant are particularly serious:

(b) This chapter applies to any offense that is charged as a misdemeanor or felony offense, except that a defendant may not be placed into a diversion program, pursuant to this section, for any of the following current charged offenses:

(1) Murder or voluntary manslaughter.

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

(3) Rape.

(4) Lewd or lascivious act on a child under 14 years of age.

(5) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.

(6) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.

(7) Continuous sexual abuse of a child, in violation of Section 288.5.

(8) A violation of subdivision (b) or (c) of Section 11418.

Cal. Penal Code § 1001.21(b).

In addition, if a defendant was already diverted under the Code withtin the last two years, “Diversion shall not be ordered.” (Cal. Penal Code § 1001.21(c)).

Call Honeychurch & Giambona to Obtain the Best Results for Your Loved One’s Case

If your loved one suffers from cognitive or developmental disabilities and is charged with a criminal offense in Fairfield, Suisun, Vacaville, Benicia, Dixon, Rio Vista, or Vallejo in Solano County, or in Napa County or Yolo County, you need an experienced, knowledgeable criminal defense team to defend their rights in Court and obtain the best result. The attorneys at Honeychurch & Giambona have successfully defended many satisfied clients who have been in a similar situation, with outstanding results.

Call us for a free consultation at 707-429-3111 to determine how we can assist you at this difficult time.

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