BHC Diversion and BHC Probation

Program Summary and Referral Procedures

Table of Contents

I. Behavioral Health Court ("BHC")

  1. BHC provides community-supervised Assertive Community Treatment (“ACT”) level mental health treatment and housing to criminal offenders living with serious mental illness.
  2. As of August 23, 2020, two programs exist under the umbrella of BHC:
    1. BHC Diversion: Pre-Plea Mental Health Diversion (pursuant to Penal Code 1001.36)
    2. BHC Probation: Post-Plea Formal Probation
    3. The two programs have different eligibility requirements and referral procedures. However, program members receive the same high-quality mental health treatment, housing, and oversight.
  3. The BHC Team includes representatives from the following organizations: Behavioral Health Services, City Attorney, District Attorney, Probation, Public Defender, Sheriff, and Superior Court.

II. BHC Diversion: No Guilty Plea Required

Program Summary

    1. BHC Diversion is a community-supervised ACT level mental health diversion program for felony criminal offenders living with certain types of serious mental illness, who are willing and able to engage in intensive treatment that mirrors the current BHC program (thereinafter, “BHC Probation”) without posing an unreasonable risk of danger to public safety.
    2. Referrals to BHC Diversion require the agreement of prosecution and defense.
      1. The terms of this referral will be set forth in a standardized document called “Referral to BHC Diversion for Evaluation.” See Attachment A
      2. If prosecution and defense cannot agree on this referral (or if Defendant simply does not want BHC Diversion), Defendant can still petition for other types of mental health diversion by utilizing the traditional diversion procedures established by PC1001.36 and the Court.
    3. BHC Court Team: Same as BHC Probation Program.

Eligibility

    1. Defendant is eligible if:
      1. Charged with a felony;
      2. San Diego County resident (age 18 or older);
      3. Mentally competent;
      4. There has never been a final finding of “mentally incompetent” pursuant to PC1370(a)(1)(B) in the current case
        1. This requirement only applies to the current case in which Defendant seeks BHC Diversion. Findings of incompetence in previous court cases does not affect Defendant’s eligibility in the current case.
        2. This requirement only applies to the final judgement of incompetence after a court hearing under PC1370. This “final judgement” is different than the initial decision to “suspend criminal proceedings” pursuant to PC1368.
          • As such, if criminal proceedings were initially suspended pursuant to PC1368 and subsequently the court found Defendant to be “mentally competent” when conducing the PC1370 hearing, Defendant is still be eligible for BHC Diversion because there was never a “final judgement” of incompetence.
        3. NOTE: This requirement comes from the Department of State Hospitals, who gave our county money to fund BHC Diversion. This requirement exists because State Hospital funds are also used to help restore Defendant’s to competency after a PC1370 finding of incompetence. As such, the State Hospitals wanted to restrict double dipping of their funds in the same criminal case
      5. Recently evaluated and diagnosed by a qualified mental health expert, who can offer the following expert opinions under oath:
        1. Defendant currently suffers from:
          • Schizophrenia;
          • Schizoaffective disorder, or
          • Bipolar I disorder.
          • NOTE: State hospital grant money can only be used for these three mental illnesses. See W&I 4361 (c)(1)(A)
        2. Defendant’s mental disorder was a significant factor in the commission of the charged offense, and
        3. Defendant’s symptoms of the mental disorder motivating the criminal behavior in the charged offense would respond to mental health treatment.
      6. Would not pose an unreasonable risk of danger to public safety, as defined in PC1170.18, if treated in the community; and
      7. Consents to BHC Diversion and waives the right to a speedy trial.
    2. MANDATORY DISQUALIFYING FACTORS
      1. Current Charges:
        1. Murder or voluntary manslaughter.
        2. Offenses that require PC 290 registration, including violations of PC 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, PC 220.
        6. Commission of rape or sexual penetration in concert with another, PC 264.1.
        7. Continuous sexual abuse of a child, PC 288.5.
        8. Violations of subdivision (b) or (c) of PC 11418.
        9. Offenses that involve use of a firearm.
      2. Prior Convictions:
        1. “Super-strikes” pursuant to PC 1170.18(b).
        2. Offenses that require current PC290 registration.
        3. Offenses that require current Arson registration
    3. POTENTIAL DISQUALIFYING FACTORS
      1. The following factors may disqualify a person from BHC Diversion, however eligibility will be evaluated on a case-by-case basis.
      2. Current Charges:
        1. a) Strike offenses.
        2. Stalking.
        3. Offenses with vulnerable victims (e.g., child abuse, domestic violence, and elder abuse) BHC Diversion and Probation Summary Page 3 of 9 Rev. 08/23/2020
        4. Violation of a protective order or stay away order.
        5. Offenses that could result in restitution orders above $5,000.
        6. Driving Under the Influence of Alcohol/Drugs
      3. Prior Convictions:
        1. Strike offenses.
        2. Stalking.
        3. Offenses with vulnerable victims (e.g., child abuse, domestic violence, and elder abuse)

Referring Candidates to BHC Diversion For Evaluation/Screening

    1. Prosecution and defense must complete and sign the document entitled “Referral to BHC Diversion for Evaluation.” See Attachment A
      1. This is an agreement to refer Defendant to the BHC Team, so the team can decide whether BHC Diversion will be granted or not.
      2. This is not an agreement that Defendant will be granted BHC Diversion. This is not an agreement that Defendant is, in fact, eligible or suitable for mental health diversion.
    2. STEP 1: Defense completes “Section I” of referral document.
      1. In this section, defense explains why they believe Defendant should be referred to BHC Diversion for screening.
        1. If Defendant is a client of the Public Defender’s Office, it is recommended that defense contact Deputy Public Defender Neil Besse to assist with this initial analysis.
      2. Once this section is filled-out, defense gives the referral document to the prosecutor who is currently assigned the case (e.g., readiness deputy or vertical trial deputy).
    3. STEP 2: Prosecutor who is currently assigned the case reviews “Section I” and decides whether they agree that Defendant should be referred to BHC Diversion for evaluation/screening.
      1. If prosecutor disagrees with referral,
        1. Defendant cannot be referred to BHC Diversion for evaluation/screening.
        2. The case will remain with the home Court.
        3. NOTES:
          • If prosecutor is unwilling to refer Defendant to BHC Diversion, defense can still petition the home Court for other forms of mental health diversion by utilizing the traditional diversion procedures established by PC1001.36.
          • If prosecutor is unwilling to refer Defendant to BHC Diversion, the home Court cannot send Defendant to BHC Diversion for evaluation/screening. Referrals require agreement of prosecution and defense. However, the home Court can still utilize traditional mental health diversion procedures established by PC1001.36, which allows prosecution the opportunity object to diversion.
          • If prosecutor is unwilling to refer Defendant to BHC Diversion, there is still the option of allowing Defendant to plead guilty in the home Court with a referral to the BHC Probation Program. However, this would require Defendant pleading guilty prior to the referral.
      2. If prosecutor agrees with referral,
        1. Prosecutor completes “Section II” of referral document.
          • • In this section, the prosecutor must decide whether a preliminary hearing is required before the referral is finalized. Also, the prosecutor decides what will occur in the event that the referral is unsuccessful (i.e., what happens if the BHC Team does not accept Defendant into the BHC Diversion Program).
        2. Prosecutor gives the referral document back to defense, so they can review the referral terms.
        3. NOTES:
          • If prosecution agrees to the referral, the declaration by defense in “Section I” will serve as a Prima Facia showing that Defendant meets the minimum requirements to be potentially eligible and potentially suitable for BHC Diversion. As such, if prosecution agrees to the referral, there is no need to conduct a Prima Facia Hearing prior to sending Defendant to BHC Diversion for evaluation/screening. However, this is not an agreement by the parties that Defendant is, in fact, eligible or suitable for a grant of mental health diversion. Defendant’s eligibility and suitability will be determined by the BHC Diversion Team after the case is referred to them.
          • Prima Facia hearings are not necessary for BHC Diversion because Telecare clinicians will perform the official mental health diagnosis after Defendants are referred to our program. Additionally, since BHC Diversion will be a mirror image of the BHC Probation Program, there is no need to scrutinize the proposed treatment program and provider in a hearing.
    4. STEP 3: Defense reviews “Section II” and decides whether they agree with the referral terms created by the prosecutor.
      1. If defense disagrees with referral terms in “Section II,”
        1. Defendant cannot be referred to BHC Diversion for evaluation/screening.
        2. The case will remain with the home Court.
        3. NOTE: Defendant can still petition the home Court for other forms of mental health diversion by utilizing the traditional diversion procedures established by PC1001.36.
      2. If defense agrees with the referral terms in “Section II,”
        1. All parties sign “Section III” of the referral document, including the Judge from the home Court.
    5. STEP 4: The case is sent to BHC Diversion Team in Department 1203 for screening/evaluation.
      1. Depending on the referral terms set forth in “Section II,” a preliminary hearing might be required before officially sending the case to BHC for screening/evaluation.

BHC Diversion Team: Screening after referral

    1. Upon being referred, the BHC Team will evaluate whether Defendant is an appropriate candidate for BHC Diversion.
    2. The screening includes:
      1. Mental Health Evaluation to determinate existence of Serious Mental Illness;
      2. Criminogenic Risk and Needs Assessment;
      3. Criminal History and Medical History Analyzed;
      4. Telecare and Probation Interviews; and
      5. Victim and Family Member Input.

BHC Diversion Team: Final Decision about BHC Diversion (or alternatively, BHC Probation)

    1. BHC Team will make the final decision about whether BHC Diversion is granted.
    2. If BHC Diversion is granted,
      1. The case will remain in BHC for the remainder of the diversion process.
      2. The case will not be sent back to the home court.
      3. See Attachment B for expanded flowchart of process.
    3. If BHC Diversion is denied,
      1. BHC Team will evaluate whether Defendant is an appropriate candidate for BHC Probation.
        1. If Defendant is a good candidate for BHC Probation,
          • Defendant will be given an opportunity to plead guilty and become of member of BHC Probation…if so desired.
            1. If Defendant wants to plead guilty to become of member of BHC Probation,
              1. Defendant will remain in BHC for guilty plea and sentencing.
              2. NOTE: the terms of Defendant’s plea deal are determined by the original prosecutor when “Section II” of the “Referral to BHC Diversion for Evaluation” is finalized. See Attachment A As such, the terms will be decided prior to the referral to BHC.
            2. If Defendant does not want to plead guilty to become of member of BHC Probation:
              1. Defendant will be sent back to the original prosecutor, original defense attorney, and original courtroom for all future hearings.
              2. Although BHC Diversion and BHC Probation will no longer be an option, Defendant can still petition for other forms of mental health diversion by utilizing the traditional diversion procedures established by PC1001.36 and the Court.
        2. If Defendant is not a good candidate for BHC Probation,
          • Defendant will be sent back to the original prosecutor, original defense attorney, and original courtroom for all future hearings.
          • Although BHC Diversion and BHC Probation will no longer be an option, Defendant can still petition for other forms of mental health diversion by utilizing the traditional diversion procedures established by PC1001.36.
          • See Attachment B for expanded flowchart of BHC Diversion process

Program Services and Supervision

    1. The mental health treatment program and services offered will mirror those offered by the BHC Probation Program. Defendant is returned to the community with supervision and services that include:
      1. Housing (sober living and independent living): Provided by program.
      2. Food and Transportation: Provided by program.
      3. Dedicated Case Manager: Individualized Client Plan + Ongoing Goal Reviews.
      4. Mental Health Treatment: Group Therapy, Individual Therapy, Court Ordered Therapy (e.g., elder abuse, domestic violence).
      5. Nurse Practitioner on site for medications.
      6. Financial Stabilization: SSI, budgeting skills, employment, Medi-Cal.
      7. Note: See Attachment C for expanded list of services and supervision.
    2. BHC Diversion Members will receive proactive diversion supervision from dedicated BHC Probation Officers. These officers will monitor members to ensure compliance with the Court’s diversion orders, including behavioral health treatment, medication, sobriety, stay-away orders, etc.
    3. The program will require successful completion of 4 performance-based phases, just like the BHC Probation Program. Although 18 months will be the minimum amount of time required to successfully complete BHC Diversion, it may take up to 24 months to complete all phases.
      1. Note: PC1001.36(c)(3) sets the maximum duration of diversion at 24 months.
    4. Housing will be secured for all members. The cost for housing will depend on individual income levels. Members with no income will receive free housing. Members with income must use a portion of their income to help pay for housing.
    5. Services will be provided by a culturally competent Assertive Community Treatment (ACT) team that includes a nurse practitioner, peer support specialist, AOD specialist, case managers, and licensed BHC Diversion and Probation Summary Page 6 of 9 Rev. 08/23/2020 therapists, who take a team-based approach to serving all members. With a staff ratio of 1:8, frequent and high-intensity services, and 24/7 availability, the ACT team embodies a “whatever it takes” philosophy.
    6. Services offered to members will be determined by individual criminogenic need. Services include evidence-based individual and group therapy, medication support, crisis intervention, validated assessment and individualized case planning, case management, health care integration, robust community linkages, and education/vocational services and training.

MEMBER RULES and WAIVER OF RIGHTS

    1. To gain acceptance into BHC Diversion, Defendants must agree to certain rules and waive certain rights. These rules and waivers are required so the probation officer can supervise members of BHC Diversion in the same fashion as members of the BHC Probation Program. As such, Defendant must agree to diversion supervision by BHC Probation Officers.
    2. The rules and waivers will be ordered by BHC Judge, as conditions of release on BHC Diversion. See Attachment D for “Participant Contract With Diversion Release Conditions.”
    3. The rules and waivers may include, but are not limited to:
      1. Abstain from using alcohol, marijuana, and controlled substances.
      2. Drug and alcohol testing.
      3. Cannot possess firearms.
      4. Mandatory Curfews.
      5. GPS monitoring.
      6. Stay Away Orders.
      7. Probation Searches.
      8. Report to Probation within 72 hours of release from custody and as directed by PO.
      9. Medication Compliance.

Acceptance of Service Agreement

    1. As a general rule, members will only be required to attend Court once-a-month for status conferences.
      1. This once-a-month schedule could become a problem if the member violates a critical diversion rule and needs to be brought back to Court quickly.
    2. Because members of BHC Diversion will not be on formal probation, the probation officer in charge of their diversion supervision will not be able to obtain arrest warrants for rule violations in the traditional matter. As such, the following procedure will be used to ensure members are brought to Court in a timely fashion. As a condition of admittance into BHC Diversion, Members must agree to this procedure:
      1. Members must agree to “Accept Written Service” of “Notice to Appear Orders” at the sober living home where BHC Diversion has placed them.
      2. Thereafter, if the probation officer determines the member has violated a critical diversion rule, the probation officer may contact the Court, explain the rule violation, and request that the member’s case be placed on-calendar immediately to address the violation.
      3. If the Court agrees to place the case on-calendar, a written “Notice to Appear Order” will be generated.
      4. The probation officer will then “serve” the written notice to appear by placing the written order on the member’s bed at the sober living home or residence where BHC Diversion has place them.
        1. As a condition of admittance into the program, Members must agree that service is valid regardless of whether they physically come home for the evening (as required by their supervision conditions) and see the notice on their bed.
        2. The probation officer will also attempt to contact the member via other methods, such as phone calls, text messages, and emails. Also, the BHC Treatment provider will be aware of the court date, so they can alert the member informally if they see the member.
      5. Once served with written notice to appear in Court (including written notice placed on their bed), Members must appear in Court at the date/time ordered. If they fail to appear in Court as ordered, the Court can decide whether a bench warrant is appropriate for the failure to appear.

Status Reviews

    1. Members will have periodic status reviews, as determined by the Court.
    2. As a general rule, status conferences will be calendared once-a-month in an effort to remain consistent with the BHC Probation Program

Completion of BHC Diversion

Upon successful completion of BHC Diversion, the Court can dismiss the member’s charges as proscribed by the mental health diversion statute.

Modification of Program Policies and Guidelines

    1. BHC Diversion was created and agreed upon by the District Attorney’s Office and Public Defender’s Office with the understanding that modifications may be necessary in the future to maximize the effectiveness of the program. Both parties will regularly convene to evaluate the implementation of the program and find ways to improve it.

III. BHC Probation: Guilty Plea Required

Target Population

Serious Mental Illness + Felony/Misdemeanor + Probation Eligible

Eligibility Requirements

    • SD County Resident (age 18 or older);
    • Mentally Competent;
    • Guilty Plea (Felony or Misdemeanor)
    • Probation Eligible; and
      1. Defendant cannot plea to charges/allegations that prohibit Probation as a possible option for sentencing
      2. For example, Defendant cannot admit a prior strike because that requires prison and BHC will not “strike a strike” for you. You must strike the strike at the time of the plea and then send the case to BHC fully Probation eligible.
    • Serious Mental Illness
      1. Actual Diagnosis NOT required before Defendant is referred to BHC Probation
        • You can refer Defendant to BHC Probation without an actual SMI diagnosis by a professional. Once Defendant is referred to BHC, the clinicians from BHC will evaluate and/or re-evaluate Defendant. The BHC clinicians will make the official diagnosis.
      2. SMI is defined in Title 9: Medical Necessity Criteria for Mental Health Plan Reimbursement.
        • Includes Schizophrenia, Mood Disorders, Anxiety Disorders, and Personality Disorders (except Antisocial Personality Disorders).
      3. NOTE: If prosecutors would like some level of proof that Defendant suffers from a SMI prior to referring them to BHC, the PD’s Office has mental health clinicians who might be able/willing to provide insight for PD clients. Prosecutors can find evidence of SMI by looking at Defendant’s criminal history or by asking family members. Even if there is no actual diagnosis in Defendant’s past, family members normally have valuable insight into Defendant’s mental health needs.
    • Specificity Excluded:
      1. PC 290 Registrant; or
      2. Used Firearm

Referral Process: Two Different Methods

  • Defendants can be referred to BHC Probation in two different ways.
  • Method 1: Utilizing the BHC Diversion Referral Process, as outlined above in Section II.3.
    1. This method is used when prosecution/defense agree that Defendant can be considered for both BHC Diversion (pre-plea diversion) or BHC Probation (post-plea formal probation).
    2. As outlined above in Section II.5, Defendant will be screened for BHC Diversion first. If the BHC Team does not believe diversion is appropriate, the team when decide whether Defendant BHC Probation is appropriate. If BHC Probation is appropriate, Defendant will be given the opportunity to plead guilty and join the BHC Probation program.
  • Method 2: Requiring a guilty plea BEFORE referral.
    1. This procedure is used when BHC Diversion is not available to Defendant. Various reasons could exist as to why BHC Diversion is not available, including when a Defendant is not eligible for diversion or when a prosecutor is unwilling to agree to a diversion referral.
    2. BHC Probation Referral Process:
      1. Plea Guilty in home court
        1. Plea agreements must include two different options for sentencing.:
          • Option A is BHC Probation
          • Option B is the backup sentence, in case Defendant is not accepted into BHC. Option B can be type of sentence, such as a stipulated prison term, STC, NOLT, etc.
          • For example: “Defendant will be referred to BHC for possible acceptance into the BHC Probation Program. If Defendant is not accepted into BHC, Defendant’s sentence will be ……(Option B)”
        2. Home readiness department sets two future court dates at time of plea: 1) BHC Screening in Department 1203 and 2) Due Course Sentencing in the home department, in case Defendant is not accepted into BHC.
      2. Sent to BHC for Screening:
        1. Evaluation for Serious Mental Illness.
        2. Criminal History and Medical History Analyzed.
        3. Telecare and Probation Interviews.
        4. Victims and Family Member Input.
      3. BHC Team decides whether to accept Defendant
        1. If Rejected, Defendant sent back to original courtroom where plea took place and sentenced to “Option B.” Defendant may not withdraw plea because rejected by BHC.
        2. If Accepted, Defendant will be sentenced in Department 1203 and become a member of BHC Probation. See Attachment E for “BHC Probation – Participant Contract.”
          • Defendant will never be sent back to home department for this case.
          • Defendant returned to community with proactive supervision and services.
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