The pretrial mental health diversion program does not apply to delinquent juveniles. M.S. killed her baby after giving birth at home. The juvenile court found she committed second degree murder. M.S. appealed, asking that her case be remanded to determine whether she falls within the new mental health diversion program. Held: Affirmed. Effective June 27, 2018, Penal Code section 1001.36 provides for a pretrial mental health diversion program if: (1) the defendant suffers from a qualifying mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) a qualified mental health expert opines symptoms of mental disorder would respond to treatment; (4) the defendant consents to diversion and waives speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant would not pose an unreasonable risk of danger to public safety. The primary purpose of the diversion statute is to treat a mentally ill adult outside of the criminal justice system through the temporary or permanent postponement of prosecution. The juvenile court is already separate from the criminal justice system and does not result in a criminal conviction. The distinctions between adult criminal prosecutions and juvenile delinquency proceedings preclude application of the mental health diversion law to juvenile cases. [Editor’s Note: Effective January 1, 2019, the mental health diversion program was amended to exclude specific violent crimes, including murder, from eligibility. This amendment made the diversion program inapplicable to M.S. regardless of whether the program applies to juveniles.]

There was sufficient evidence the minor intended to kill her infant, which supported the juvenile court’s finding of express malice. Second degree murder requires a finding of express malice, i.e., an intent to unlawfully kill. Here, the nature of the wounds inflicted on the infant by the minor support the juvenile court’s finding of intent to kill unlawfully.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B280998M.PDF