DIVERSION Consumers/Defendantswith “Cognitive Developmental Disabilities” (effective January 1, 2005)

Applicability Diversion may be available for any person who has been evaluated by a regional center and determined to have a “cognitive developmental disability.” Persons eligible for this type of diversion are also eligible for regional center services.

What Is a “Cognitive Developmental Disability”? Penal Code section specifies that “cognitive developmental disabilities” include: Mental retardation Autism Disabling conditions found to be closely related to mental retardation or autism, or that require treatment similar to that required for individuals with mental retardation or autism.

Purpose of Diversion Services Specialized services are directed toward alleviating the “cognitive developmental disability” or toward providing habilitation or rehabilitation related to social, personal, physical, or economic functioning.

What Services Are Available? Diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, physical, occupational, and speech therapy, training, education, sheltered employment, mental health services, recreation, counseling of the individual and/or his family, protective and other social and socio-legal services, information and referral, follow-along services, and transportation.

Single Agency Diversion The regional center develops a treatment and habilitation program, administered by the regional center. The program is tailored to meet the needs of the consumer (defendant) as “derived” from the IPP. Treatment may be specifically related to the offense charged. The program is developed with court approval.

Dual Agency Diversion This diversion program is administered jointly by the probation department and the regional center. This program is individually tailored to meet the needs of the consumer (defendant) in the same manner as the single agency diversion program. Court approval is required.

How Does Diversion Work? If the court suspects that the consumer (defendant) has a “cognitive developmental disability,” the court may order the prosecutor, the probation department, and the regional center to prepare reports on the consumer’s case. The reports are prepared concurrently. The court will decide if the consumer may be diverted.

The Regional Center Report This report must be submitted to the probation department within 25 judicial days of the order. The report will include a finding of whether the consumer (defendant) is eligible for diversion-related treatment and habilitation services. The regional center will also submit a proposed diversion program that includes treatment addressed to the offense charged.

What Does The Prosecutor Do? The prosecutor will submit a report to the court, to each of the other agencies involved, and to the consumer (defendant) within 30 judicial days. The prosecutor will recommend either a single or dual agency diversion.

What If Diversion Is Not Approved Or Terms Not Met? The defendant may have to stand trial for the alleged offense. The defendant may have to stand trial for the alleged offense. Suspended criminal proceedings may be reinstituted. If the defendant fails to meet the terms of the diversion plan, the defendant may be required, after a hearing, to stand trial on the original diverted offense.

Admissibility of Statements No statement or information from the consumer during the course of the investigation will be admissible in any proceeding brought after the completion of the investigation. After the diversion is granted, no statement or information from the consumer, related to the specific offense, will be admissible in any proceeding.

Progress Reports The responsible agency or agencies must file reports on the consumer’s progress at least every six months.

Dismissal Of Criminal Charges If the performance of the consumer is satisfactory during the period of diversion, the criminal charges will be dismissed. Advocacy support has been key to the development and implementation of many diversion programs. Keeping consumers out of jail and other dangerous places is part of our job! For full text of diversion statute, go to: Westlaw.