Presumption of Mental Health Diversion Eligibility Must be Overcome by Substantial Evidence

People v. Harlow (Cal. Ct. App., July 5, 2025, No. D084252) 2025 WL 2218129, at *1

Eligibility for mental health eligibility

To qualify for mental health diversion under Penal Code section 1001.36, criminal defendants must show they are both “eligible” and “suitable” for the program. Mental health diversion must be applied  “as broadly as possible” (People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149) and accordingly the Legislature amended the statute effective January 1, 2023 to make it much easier for defendants to establish threshold eligibility. They are generally eligible for diversion if within the last five years “they ‘ha[ve] been diagnosed’ with a recognized mental disorder.” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891 (Sarmiento), quoting § 1001.36, subd. (b)(1).)

A mental health diagnosis “creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime.” (Sarmiento, at p. 891, 317 Cal.Rptr.3d 112.) The presumption can only be rebutted by “clear and convincing evidence that [the mental disorder] was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” (§ 1001.36, subd. (b)(2).)

Facts: Harlow was charged with one count of assault with a deadly weapon and filed a motion for mental health diversion in September 2023. In support of the motion, he submitted a diagnosis of several mental disorders made by a qualified mental health expert two months earlier. The court found that Harlow had “a recent diagnosis of a qualified mental health disorder,” but concluded he was ineligible because it believed a diagnosis three years after the crime did not indicate that the disorder “played a significant factor in the charged offense.”

The Legislature addressed the timing of the qualifying mental health diagnosis, and it did not say that a diagnosis more than three years after the crime was inadequate or entitled to less weight. The statute says is that any qualifying diagnosis “within the last five years”—five years before the filing of the diversion request—creates a presumption that the mental disorder was at least a contributing factor to the defendant’s criminal behavior.

Harlow’s qualifying diagnosis was made two months before the filing of the motion, and the court was not free to apply a timing rule different than one the Legislature chose to enact. There was not substantial evidence to support a finding by clear and convincing evidence that Harlow’s diagnosed mental disorders were “not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.” (§ 1001.36, subd. (b)(2).)

Without clear and convincing evidence to rebut the statutory presumption that Harlow’s diagnosed mental disorders contributed to his alleged criminal behavior, the court erred in concluding he was ineligible for mental health diversion. On remand, the court must address the separate and distinct requirements to determine if Harlow is suitable for diversion.

Defendants are generally eligible for mental health diversion if within the last five years they “ha[ve] been diagnosed” with a recognized mental disorder. (§ 1001.36, subd. (b)(1).) The statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime. (Sarmiento, at p. 891.) The court must “find a causal connection ‘unless there is clear and convincing evidence that [the mental disorder] was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.’ ([§ 1001.36], subd. (b)(2).)” (Sarmiento, at p. 891.) Assuming eligibility, the court must consider four additional factors to determine whether the defendant is also suitable for a diversion program. (§ 1001.36, subd. (c)(1)–(4).)

Following the 2022 amendments, defendants with a proper mental health diagnosis will seldom be ineligible for diversion. The more difficult question will be determining whether they are suitable.

Harlow’s diversion request included a psychological report from a psychiatric physician’s assistant dated June 29, 2023 diagnosing him with major depressive disorder, post traumatic stress disorder (PTSD), and generalized anxiety disorder. The trial court found that Harlow “does, in fact, have a recent diagnosis of a qualified mental health disorder.” This satisfied the first statutory criterion for eligibility (§ 1001.36, subd. (b)(1)), it also should have significantly impacted the analysis of the second. A qualifying diagnosis creates a presumption that the defendant’s mental condition contributed to his criminal behavior. The prosecution can only rebut this presumption by producing clear and convincing evidence that there was no causal connection.

The judge concluded that because the diagnosis was not made until three years after the assault, he could find based on clear and convincing evidence that Harlow’s more recent mental condition did not causally relate to his less recent criminal behavior.

But once the defendant produces a timely mental health diagnosis, the statute requires that the court presume the crime with which the defendant is charged was causally related to his mental condition. The burden then shifts to the prosecution to show by clear and convincing evidence that the defendant’s diagnosed mental disorder was not a contributing factor. The district attorney offered no evidence in opposition to Harlow’s motion. Referring to the psychiatric report that included the diagnosis, they argued there was “nothing showing the defendant suffered from any of these [disorders] at the time of the incident.” But argument by counsel “is not evidence in the case and cannot be relied upon to support the trial court’s order.” (Estate of Pittman (1980) 104 Cal.App.3d 288, 295.) The statutory presumption means it was the People who were required to show that one or more of Harlow’s diagnosed disorders did not contribute to causing the incident. They did not do so.

Harlow faces a more significant hurdle in establishing he is suitable for mental health diversion. (§ 1001.36, subd. (c).) But he should not have been denied participation in the diversion program based on being ineligible.

Disposition

The judgment is conditionally reversed, and the matter remanded to the trial court with directions to find Harlow eligible and consider whether he is suitable for mental health diversion under section 1001.36. If the trial court determines Harlow is suitable, it may grant diversion. If the court determines he is not suitable for diversion, or if he does not successfully complete diversion once granted, it shall reinstate the judgment of conviction.

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