Mental Disorder Diversion

• File:MHDiversion - AB1810.docx

When to make motion

Term “at any stage of the proceedings” as used in statute providing for mental health diversion program, refers to proceedings before trial.  People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

Phrase “until adjudication,” in statute authorizing trial courts to grant pretrial diversion to defendants diagnosed with qualifying mental disorders, means until the judgment of conviction, which occurs at sentencing, rather than until adjudication of guilt.  People v. Curry (App. 3 Dist. 2021) 276 Cal.Rptr.3d 406, review denied, vacated, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.  Sentencing and Punishment

Amended criminal statute authorizing trial courts to grant “pretrial diversion” to defendants diagnosed with qualifying mental disorders does not apply retroactively to cases that have progressed beyond adjudication but are not yet final; statute concerned pretrial diversion and expressly stated it would apply only “until adjudication,” which could not occur after conviction.  People v. Lipsett (App. 6 Dist. 2020) 258 Cal.Rptr.3d 903, rehearing denied, review granted 265 Cal.Rptr.3d 604, 468 P.3d 1121, transferred 267 Cal.Rptr.3d 695, 471 P.3d 1001, transferred to 2020 WL 5511849, unpublished

Pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced; upon reaching this point of adjudication, the prosecution is over and there is nothing left to postpone.  People v. Weaver (App. 6 Dist. 2019) 249 Cal.Rptr.3d 223, review granted 253 Cal.Rptr.3d 624, 450 P.3d 237, review dismissed, cause remanded 2020 WL 4356821.  

Statute governing pretrial diversion for defendants suffering from mental disorders applied retroactively to defendant, who was convicted of making criminal threats and exhibiting a deadly weapon; defendant's conviction was not yet final on appeal, and nothing in pretrial diversion statute overcame presumption that newly enacted legislation mitigating criminal punishment be applied retroactively.  People v. Weaver (App. 6 Dist. 2019) 249 Cal.Rptr.3d 223, review granted 253 Cal.Rptr.3d 624, 450 P.3d 237, review dismissed, cause remanded 2020 WL 4356821.

Statute authorizing pretrial diversion in certain cases involving mentally disordered offenders does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing.  People v. Craine (App. 5 Dist. 2019) 247 Cal.Rptr.3d 564, review granted 252 Cal.Rptr.3d 227, 448 P.3d 238.

The Court of Appeal cannot unconditionally reverse a defendant's conviction to undo an adjudication where there was no trial error requiring reversal merely to allow a trial court to consider the defendant for pretrial diversion, because that disposition would implicate the prohibition against double jeopardy.  People v. Khan (App. 6 Dist. 2019) 254 Cal.Rptr.3d 392, review granted 257 Cal.Rptr.3d 784, 456 P.3d 933

Phrase “until adjudication,” as used in statute permitting mental health diversion, limited eligibility to period before defendant was convicted, and thus defendant who had entered guilty plea two years earlier was not eligible for mental health diversion, even though she was still on probation.  People v. Rodriguez (App. 4 Dist. 2021) 283 Cal.Rptr.3d 501, review filed.

Among the threshold eligibility requirements for a pretrial mental health diversion program is that, unless the defendant has been found to be mentally incompetent, he or she must consent to diversion and waive his or her right to a speedy trial.  People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

Eligibility for mental health diversion unequivocally makes defendant's consent to consideration for diversion contingent upon simultaneous waiver of speedy trial rights.  People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

A defendant is ineligible for a pretrial mental health diversion program after his trial begins.  People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

A trial court may grant mental health diversion after first broaching its prospects with parties, but there is no sua sponte duty to do so in the absence of request by the defendant or any other person.  People v. Banner (Cal.App. 5 Dist. 2022) 2022 WL 190310.  

Request for pretrial diversion is timely only if it is made prior to jury's guilty verdict.  People v. Graham (App. 2 Dist. 2021) 279 Cal.Rptr.3d 255, rehearing denied, review granted 282 Cal.Rptr.3d 638, 493 P.3d 195.

Statute authorizing trial courts to grant pretrial diversion for certain defendants suffering from mental health disorders applies retroactively to all cases in which the judgment is not yet final.  People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.  

Statute that created a pretrial diversion program for certain defendants with mental health disorders applied retroactively to defendant appealing robbery conviction, where statute provided possible benefit to class of criminal defendants and did not contain an express savings clause that limited program to prospective-only application, statute's definition of “pretrial” diversion to apply “until adjudication” did not clearly signal intent to overcome inference of retroactive application, and Legislature was deemed aware of need to clearly and directly indicate intent if it did not want statute to apply retroactively to nonfinal judgments; disapproving People v. Lipsett, 45 Cal.App.5th 569, 258 Cal.Rptr.3d 903 , People v. Khan, 41 Cal.App.5th 460, 254 Cal.Rptr.3d 392 , People v. Craine, 35 Cal.App.5th 744, 247 Cal.Rptr.3d 564.  People v. Frahs (2020) 264 Cal.Rptr.3d 292, 466 P.3d 844.

Statute providing for pretrial diversion of defendants for purposes of mental health treatment did not apply retroactively to defendant who was convicted of arson and sentenced before passage of statute, even though statute had salutary, remedial purposes; permitting unconditional reversal of convictions to undo adjudications in the absence of trial error would implicate prohibition against double jeopardy, express language of statute allowed for pretrial diversion only up to the point of adjudication, conditional reversal of convictions under the pretense that no “adjudication” had occurred would defy legislature's intent of granting diversion early in criminal process and avoiding costs of trial and incarceration.  People v. Khan (App. 6 Dist. 2019) 254 Cal.Rptr.3d 392, review granted 257 Cal.Rptr.3d 784, 456 P.3d 933.

Statute giving trial court discretion to grant pretrial diversion for defendants suffering from mental disorders applied retroactively to defendant who had been convicted of attempted murder of peace officer, assault with firearm on peace officer, and related gun charges, but whose judgment was not yet final, and thus trial court was required, at resentencing, to determine defendant's eligibility for diversion.  People v. Hughes (App. 1 Dist. 2019) 252 Cal.Rptr.3d 510, review granted 255 Cal.Rptr.3d 392, 453 P.3d 37, review dismissed, cause remanded 2020 WL 4355706.

Statute authorizing pretrial diversion to defendants diagnosed with certain mental disorders does not apply retroactively to defendants tried, convicted, and sentenced before the effective date of statute.  People v. Torres (App. 2 Dist. 2019) 252 Cal.Rptr.3d 484, review denied.

Statute authorizing pretrial diversion of defendants with qualifying mental disorders applied retroactively to defendant whose convictions for false imprisonment, evading police vehicle, and related offenses were not final as of statute's effective date, thus requiring remand for determination whether defendant was eligible for pretrial diversion, despite People's assertion that remand would be futile because trial court had stricken only one strike prior that defendant posed danger to community if paroled early; physician who conducted postconviction psychological evaluation diagnosed defendant with qualifying mental disorder, and trial court's evaluation of defendant's dangerousness in connection with parole determination presented different question from its consideration of mental health diversion, in that trial court made no findings as to whether, during or after inpatient or outpatient mental health treatment, defendant would pose unreasonable risk of danger to public safety.  People v. Burns (App. 4 Dist. 2019) 251 Cal.Rptr.3d 442, review granted 254 Cal.Rptr.3d 193, 450 P.3d 1256, review dismissed, cause remanded 2020 WL 4356818.

Defendant did not require certificate of probable cause to challenge the trial court's sentencing discretion relating to his attorney failing to request a hearing on his eligibility for mental health diversion; defendant pleaded no contest to one count of carrying a concealed dirk or dagger, which carried a minimum sentence of 16 months and a maximum sentence of three years, defendant admitted a violation of probation, pursuant to the plea agreement parties agreed to a maximum aggregate sentence of two years eight months, and trial court denied probation and imposed midterm sentence of two years and midterm sentence of eight months for being a felon in possession of a firearm.  People v. Hill (App. 1 Dist. 2021) 274 Cal.Rptr.3d 153, rehearing denied.

What can be diverted

Defendant convicted of murder for shooting teenager attempting to steal defendant's truck was not entitled to remand for consideration of pretrial mental health diversion, although defendant may have been briefly eligible for pretrial diversion as diversion statute was originally enacted, since diversion eligibility was excluded by murder conviction.  People v. McShane (App. 4 Dist. 2019) 248 Cal.Rptr.3d 322, rehearing denied, review granted 252 Cal.Rptr.3d 666, 449 P.3d 347.

Even if mental health pretrial diversion program applied to juveniles generally, juvenile's offense, second degree murder of her murder, did not qualify for such diversion programs, since murder was exempted from the diversion program's eligibility.  In re M.S. (App. 2 Dist. 2019) 244 Cal.Rptr.3d 580, modified on denial of rehearing, review denied.

Juvenile was not entitled to remand to allow the juvenile court to make eligibility determination regarding mental health pretrial diversion, according to newly enacted statutes, following second degree murder regarding her newborn; distinctions between adult criminal prosecutions and juvenile delinquency proceedings precluded application of mental health diversion law to juvenile cases, and juvenile court imposed a rehabilitation program for juvenile consistent with purposes of juvenile law.  In re M.S. (App. 2 Dist. 2019) 244 Cal.Rptr.3d 580, modified on denial of rehearing, review denied.

Applying rational basis standard, excluding juveniles from mental health diversion law available to adult offenders did not violate equal protection guarantee; there were material differences between adult and juvenile justice schemes with regard to their underlying purposes and to the treatment of offenders with mental health issues, and thus legislature could rationally devise and maintain a separate statutory scheme for juveniles that addressed their rehabilitative needs in delinquency proceedings and provided different criteria for potential diversion.  In re J.M. (App. 1 Dist. 2019) 248 Cal.Rptr.3d 191, rehearing denied, review denied.

Amendment to statutory diversion program eliminating eligibility for defendants required to register as sex offenders did not violate the ex post facto clauses of the state or federal Constitutions, and thus defendant was ineligible for mental health diversion following his convictions for communicating with a minor with the intent to commit a specified sexual offense and annoying or molesting a child, where statutory diversion program did not exist when defendant committed underlying offenses.  People v. Cawkwell (App. 4 Dist. 2019) 246 Cal.Rptr.3d 744, review granted 250 Cal.Rptr.3d 720, 446 P.3d 234.

Eligibility

Even if trial court had a sua sponte duty to consider pretrial mental health diversion, record supported court's conclusion that defendant's mental health was not a significant factor underlying defendant's robbery charges, and thus defendant was not entitled to pretrial mental health diversion, even though there was significant evidence of that defendant had mental health conditions, where defendant testified he was innocent, his interview with police officer at crime scene was coherent, and no witness believed defendant was a person with a mental health condition during the incident.  People v. Banner (Cal.App. 5 Dist. 2022) 2022 WL 190310.

A defendant diagnosed with a mental disorder that is listed as an excluded disorder in the statute governing mental-health pretrial diversion is not categorically barred from establishing eligibility for diversion based on a different, qualifying disorder.  Negron v. Superior Court of Kern County (Cal.App. 5 Dist. 2021) 286 Cal.Rptr.3d 20.

Court's discretion

In enacting a mental health diversion program, the Legislature sought to expand the use of community-based mental health treatment in order to prevent defendants with treatable mental illness from cycling in and out of the criminal justice system.  People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

Trial court, on remand in robbery prosecution, was required to make eligibility determination regarding pretrial diversion for defendants with mental disorders while treating the matter, to the extent possible, as though defendant had moved for pretrial diversion after charges had been filed but prior to their adjudication; statute governing diversion program applied retroactively, and evidence suggested defendant had been diagnosed with schizoaffective disorder.  People v. Frahs (App. 4 Dist. 2018) 238 Cal.Rptr.3d 483, review granted 242 Cal.Rptr.3d 417, 433 P.3d 1, affirmed and remanded 264 Cal.Rptr.3d 292, 466 P.3d 844.

Trial court abuses its discretion in determining whether to grant mental health diversion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.  People v. Gerson (Cal.App. 4 Dist. 2022) 2022 WL 263438.

The mental health diversion statute affords trial court discretion to grant or deny diversion if defendant meets statutory eligibility requirements.  People v. Oneal (App. 5 Dist. 2021) 279 Cal.Rptr.3d 142, review denied.

Court of Appeal would exercise its discretion to address the merits of waived issue of whether the mental health diversion statute permitted consideration of reports prepared in relation to an insanity plea, where the issue was a question of law and no published decision had addressed the evidence a court could rely on in considering a defendant's eligibility for mental health diversion.  People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Trial court, being in the best position to decide the matter, has broad discretion to determine whether a given defendant is a good candidate for mental health diversion.  People v. Curry (App. 3 Dist. 2021) 276 Cal.Rptr.3d 406, review denied, vacated, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

For purposes of statute authorizing trial courts to grant pretrial diversion to defendants diagnosed with certain mental disorders and defining pretrial diversion to include postponement of prosecution at any point in the judicial process from point at which accused is charged until adjudication, “until adjudication” means before the jury is impaneled and sworn.  People v. Torres (App. 2 Dist. 2019) 252 Cal.Rptr.3d 484, review denied.  

Substantial evidence supported trial court's finding that defendant did not meet his burden of showing that he suffered from bipolar disorder, and thus that pretrial mental health diversion was not warranted in prosecution for attempted voluntary manslaughter and related offenses; court-appointed licensed psychologist opined that defendant's violent behavior resulted from his voluntary substance use combined with his interpersonal reactivity, grandiose self-importance, entitlement, and hostility, and neither defense expert nor court-appointed psychiatrist, who opined that defendant's drug use leading up to incident did not cause his behavioral change before incident, determined whether defendant had personality disorder.  People v. Gerson (Cal.App. 4 Dist. 2022) 2022 WL 263438.

Defendant who had filed a motion for mental health diversion forfeited any challenges to trial court's use and consideration of psychiatrist's and forensic psychologist's report related to defendant's insanity plea in his motion, in prosecution for second-degree robbery, and first-degree burglary, even though defense counsel suggested that the report were “not the right reports” for the court to rely on, where defense counsel clarified to trial court that he was not objecting to court considering the report, but instead suggested court “use it with caution.” Cal.  People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Whether a court may consider a report prepared in relation to a defendant's insanity plea when evaluating that defendant's eligibility for mental health diversion ultimately turns on the relevance of that report in determining whether defendant's mental disorder was a significant factor in the commission of the charged offense.  People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Reports prepared by psychiatrist and forensic psychologist for defendant's insanity plea were relevant to defendant's motion for mental health diversion, arising from charges for second-degree robbery and first-degree burglary, and therefore were properly considered by trial court; experts attributed defendant's commission of offenses to drug use, rather than psychotic or schizoaffective disorder, they rendered their opinions after considering a wide array of materials, including police reports, medical records, defense counsel's communication with and documents, and their own clinical interviews of defendant, and their conclusions bore directly on, and had a tendency to prove whether defendant's mental disorder was a significant factor in commission of the offenses.  People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Substantial evidence supported trial court's determination that defendant's mental health disorder was not a significant factor in the commission of the charged offenses of burglary and robbery, and thus defendant was ineligible for mental health diversion on those grounds, although defendant's expert opined that defendant's schizoaffective disorder played a significant role in commission of the offenses; psychiatrist and forensic psychologist, who evaluated records for defendant's insanity plea, opined that defendant's psychotic or schizoaffective disorder was not responsible for, or a motivating factor in, his commission of the crimes, and defendant's expert did not engage defendant in a clinical interview or address the role of defendant's substance use in his criminal behavior.  People v. Oneal (App. 5 Dist. 2021) 279 Cal.Rptr.3d 142, review denied.

Evidence supported trial court's finding that any mental illness defendant was allegedly suffering did not have any bearing on his criminal conduct, and thus defendant was not entitled to remand for evidentiary hearing on eligibility for pretrial mental health diversion, on charges for attempted second-degree robbery, assault with semiautomatic firearm, and possession of firearm by convicted felon, arising out of defendant's attempt to rob store; defendant had pled not guilty by reason of insanity, mental health experts who examined defendant opined that he was legally sane at time of crime, although defendant had history of anxiety and depression, experts did not see evidence of bipolar disorder or psychosis, and recording of interview with police within hours after arrest indicated that defendant knew what he was doing when he entered store armed with gun, pointed gun in store employee's face, and demanded that she empty cash from cash register into bag, and that he knew what he was doing was wrong.  People v. Jefferson (App. 5 Dist. 2019) 251 Cal.Rptr.3d 170, review denied, appeal after new sentencing hearing 2021 WL 1624972, unpublished.

Risk to public safety

Determination that defendant would pose unreasonable risk of danger to public safety if treated in community, as basis for denying mental-health pretrial diversion, was not an abuse of discretion, in prosecution for arson of forest land; clinical psychologist stated that defendant would not pose unreasonable risk “as long as” he took his psychiatric medication on consistent basis and “stay[ed] abstinent” from using methamphetamine but otherwise he would become unstable and psychotic and would be likely to reoffend “in some bizarre manner,” and trial court reasonably concluded that defendant, who had been using methamphetamine on daily basis for 14 years and who had not been deterred by prior arrests for being under influence of methamphetamine, would not refrain from using methamphetamine.  People v. Pacheco (Cal.App. 2 Dist. 2022) 2022 WL 453956

Defendant, charged with felony stalking, was not reasonably likely to commit a “super-strike offense” if granted mental health diversion and treated in the community, and thus was eligible for mental health diversion, although defendant terrorized a family and although after little more than a year of voluntary treatment, defendant continued to harbor resentment against his victims; two uncontroverted opinions of mental health professionals indicated he posed a low risk to public safety, there was no evidence he owned, possessed, or had access to weapons, he was released on bond for more than two years without incident, he had no prior criminal record, faced no other pending charges, and, for all of his horrific threats, he never actually assaulted anyone or engaged in any violence.  People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

When determining whether a defendant is an unreasonable risk of danger to public safety, as would make him ineligible for mental health diversion, the “risk of danger” is narrowly confined to the likelihood the defendant will commit a limited subset of violent felonies, known as super-strike offenses.  People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

By requiring assessment of whether defendant, seeking pretrial mental health diversion, “will commit a new violent felony” within meaning of Three Strikes Reform Act, trial court necessarily must find that defendant is likely to commit super-strike offense; thus, risk of danger is narrowly confined to likelihood defendant will commit limited subset of violent felonies.  People v. Moine (App. 2 Dist. 2021) 276 Cal.Rptr.3d 668, review denied.

Statute, Chapter 2.8A Diverison of Individuals with Mental Disorders

Penal Code 1001.35

The purpose of this chapter is to promote all of the following:

(a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

(b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.

(c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

Penal Code section 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.

(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.