Forensic Psychological Evaluations for Diversion, Mitigation and Litigation

Mental Health Diversion Evaluations (Penal Code § 1001.36)

Under § 1001.36, a court may pause proceedings and place a defendant in mental health treatment for up to two years on a felony, or one year on a misdemeanor. If the defendant performs satisfactorily, the charges are dismissed and the arrest is generally deemed never to have occurred.

The statute depends on expert evidence. In summary:

• Eligibility: a diagnosed mental disorder (other than antisocial personality disorder or pedophilia), with a diagnosis or treatment within the last five years by a qualified mental health expert. Once a diagnosis is shown, the court must find the disorder was a significant factor in the offense unless there is clear and convincing evidence it was not.

• Suitability: a qualified mental health expert’s opinion that the symptoms that motivated the conduct would respond to treatment, the defendant’s consent and agreement to comply, and a finding that the defendant would not pose an unreasonable risk of danger to public safety if treated in the community.

• Prima facie showing: the court may require an early showing of eligibility and suitability, often on written reports and offers of proof.

A diversion evaluation from this practice addresses each element directly:

• DSM-5-TR diagnosis, supported by interview, standardized testing and records

• The relationship between the disorder and the charged conduct

• Whether the symptoms are likely to respond to treatment, with a specific, realistic treatment plan

• Risk factors and protective factors relevant to public safety in community treatment

• A concise written report suitable for a prima facie showing and the diversion hearing

Background reading for clients and families: Mental Health Diversion in California (Penal Code § 1001.36).

Military Diversion and Veterans in the Criminal Courts

California gives current and former service members additional paths. Military diversion under Penal Code § 1001.80 is available for eligible offenses when a defendant may be suffering from sexual trauma, traumatic brain injury, PTSD, substance abuse or mental health problems as a result of military service. At sentencing, § 1170.91 requires the court to consider such service-related conditions as factors in mitigation.

Dr. Felleman’s VA background is directly relevant here. Evaluations for veterans review service, VA treatment and C&P records, document service-related conditions and their connection to the offense, and set out a treatment plan that can use VA and community resources.

Sentencing Mitigation Evaluations

A mitigation evaluation gives the court a psychologically grounded account of who the client is and how they came to be before it. In California, Penal Code § 1170(b)(6) creates a presumption in favor of the lower term when psychological, physical or childhood trauma, youth, or prior victimization contributed to the offense, unless aggravating factors outweigh it. In federal cases, the same evidence speaks to the defendant’s history and characteristics under 18 U.S.C. § 3553(a).

Mitigation evaluations typically address:

• Developmental, family and trauma history, including adverse childhood experiences

• Current diagnoses and cognitive functioning

• How trauma, mental illness or cognitive limitations contributed to the conduct

• Treatment needs, prognosis and protective factors

• Recommendations relevant to sentencing, supervision and treatment

Dr. Felleman works with state and federal defense teams, including mitigation specialists and appointed counsel, and coordinates with counsel on scope, records and timing.