Mental Health

Mental health intersects substantially with the criminal justice system. Many people who find themselves charged with crimes are suffering from known or still-undiagnosed mental health conditions. Traditionally, prosecutors have been hesitant to recognize the role mental health plays in criminal conduct. But evidence is mounting that many criminal defendants are afflicted with legitimate mental health disorders recognized by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”). There is also growing evidence that mental health treatment can often provide a more effective path to rehabilitation and the promotion of public safety than traditional punitive measures.

The legislature is increasingly recognizing this mental health reality and passing new laws to facilitate treatment rather than incarceration for defendants with mental health issues. One of the most promising programs recently enacted is mental health diversion (Penal Code §§ 1001.35-36). A diversion program provides an alternative to traditional criminal prosecution. A judge may order the defendant to complete specific terms over a period of time, and if the defendant is successful, the case will be dismissed without a conviction.

To apply for mental health diversion, a defendant must have been diagnosed with a DSM-5 mental disorder, which was a significant factor in the commission of the charged offense(s) and which disorder would respond to treatment. The defendant must further consent to diversion, agree to comply with treatment conditions, and not pose an unreasonable public safety risk (as defined by Penal Code § 1170.18) if treated in the community.

Showing these requirements requires the engagement and work of a mental health expert. Even after making this showing, the judge has discretion whether or not to grant mental health diversion. It is worth noting that a defendant may have the option of seeking mental health diversion even if he or she does not suffer from severe mental illness. The statute states that any treatable DSM-5 condition may qualify, and even high-functioning defendants can benefit from a grant of mental health diversion based on a less severe diagnosis such anxiety or post-traumatic stress disorder.

Another mental health issue that may sometimes come up in a criminal case is the defendant’s mental competence to stand trial (Penal Code § 1368). Every defendant must have sufficient mental competence to understand and participate in the criminal proceedings before those proceedings can go forward. If a doubt is raised as to defendant’s competence, the trial court must stay the proceedings and hold a competence hearing, usually after appointing at least one qualified mental health expert to assess the defendant. At such a hearing, the party seeking a finding of competence must prove by a preponderance of the evidence that the defendant is unable to do any of the following: 1) understand the nature and purpose of the criminal proceedings against him; 2) understand his own status and condition in the proceedings; and 3) assist, in a rational manner, his attorney in presenting his defense. If the defendant is found incompetent, the court will order the defendant’s commitment and treatment to restore the defendant to competence before resuming the proceedings.

Another possibility for a defendant suffering from a severe mental health disease is to enter a plea of not guilty by reason of insanity (“NGI”) along with a standard not guilty plea (Penal Code § 1026 et seq.). A trial on the NGI plea follows the trial on guilt if the defendant is first found guilty of at least one charge. At the NGI trial, the defense seeks to prove by a preponderance of the evidence that: 1) the defendant has a mental disease, and 2) he was incapable of knowing or understanding the nature and quality of his act or he was incapable of distinguishing right from wrong at the time of the commission of the offense. If the defendant is found to be NGI, he is committed for treatment for a period of time up to the maximum prison sentence for the charge(s). If the defendant is restored to sanity, he may request a hearing to show that he no longer poses a danger to public safety as a result of his mental disorder such that he can be released into the community. Prior to restoration, the NGI defendant can also request suitable outpatient treatment in the community (Penal Code §1601(a)).

The prosecution can file a petition for a two-year extension of a commitment of a defendant found to be NGI (Penal Code § 1026.5(b)). Such an extension proceeding must be initiated by the prosecution at least 90 days before the commitment ends. The prosecution must then prove that 1) the defendant suffers from a mental disorder, and 2) as a result, the defendant poses a substantial danger of physical harm to others and has serious difficulty in controlling his dangerous behavior. The defendant is entitled to a jury trial on such an extension petition.

Another mental health proceeding involves the prosecution’s petition to designate a defendant about to be released from state prison as a Mentally Disordered Offender (“MDO”) (Penal Code §2960 et seq.). An inmate found to be a MDO will be required to undergo inpatient treatment at a mental health hospital as a parole condition. To establish MDO status for an inmate, the prosecution must prove beyond a reasonable doubt: 1) he was convicted of felony and received a state prison sentence; 2) has a severe mental disorder; 3) which was one of the causes of the convicted crime; 4) he was treated for severe mental disorder for 90 days or more within one year before his parole release date; 5) the disorder was either not in remission, or could not be kept in remission without treatment; and 6) because of the severe mental disorder, he represented a substantial danger of physical harm to others. The prosecution can also seek an extension of any MDO commitment.

A similar proceeding occurs when the prosecution petitions that a defendant, who was previously convicted of a sexually violent offense, be designed a Sexually Violent Predator (“SVP”) (Welfare and Institutions Code § 6600 et seq.). To designate a parolee with SVP status, the prosecution must prove that 1) he has a diagnosed with a mental health disorder and, 2) as a result of that disorder, he is a danger to the safety of others based on the likelihood he will engage in sexually violent predatory behavior.

I have extensive experience handling mental health proceedings in the criminal law context. Contact me today for a free confidential consultation.

Client Reviews

Will is a fantastic lawyer. This isn’t the first time I’ve had a run-in with the courts. Will is the hardest working and most thorough attorney I’ve worked with and absolutely went above and beyond in my case. Every possible avenue of defense from motions to appeals were worked, and though my case...


Will Morehead is a FANTASTIC attorney!!! He is professional, knowledgeable, personable and time-efficient. He answered my call immediately and after I explained my situation, he was able to give me an overview of the law as it related to my situation, and to project the possible outcomes. I felt...


I worked with Will for about a year. He was able to help me receive my freedom. In order to do that, Will had to overcome multiple challenges and he overcame them all. I’m very happy to have worked with him, he’s a very trustful hardworking man. I’m very greatful for everything he did did my family...


Will Morehead is masterful. He is truly masterful. Never mind that he is pleasant, he has the goods in spades. Remarkably talented and doing the work he was always meant to do, whilst ever refining a skill set that is already stellar. In my case, Will had to sift through, digest, edit and utilize...


The best defense is indeed a great offense. Lighten your journey by retaining Will Morehead as your criminal defense shield. One of the brightest lights in the profession of legal advocacy, Will Morehead will forever be my “Warrior Will.” If you are in need of Criminal Defense protection, it would...


Contact Us

  1. 1 Free & Confidential Consultation
  2. 2 Available 24/7
  3. 3 Get Experience and Expertise on Your Side
Fill out the contact form or call us at (415) 730-2558 to schedule your free & confidential consultation.

Leave Us a Message