The diversion program California offers under PC 1001.36 provides an alternative pathway for individuals facing criminal charges who have qualifying mental health conditions. Instead of traditional prosecution, eligible defendants can participate in court-supervised mental health treatment. Successfully completing the program results in case dismissal and sealed records. This article explains how mental health diversion works, eligibility requirements, qualifying offenses, the step-by-step process, and the long-term benefits of choosing treatment over conviction.
Penal Code 1001.36 establishes a pretrial diversion framework that addresses criminal cases where mental health disorders contribute to the charged conduct. The court may grant this diversion for defendants facing misdemeanor or felony charges, provided they meet specific statutory requirements. This discretionary program allows judges to redirect eligible defendants away from traditional prosecution and toward supervised mental health treatment.
Before diversion begins, defendants must enter a not guilty plea and waive their right to a speedy trial. The criminal proceedings then pause while the defendant participates in court-approved treatment. The program duration varies based on the charge level: felony diversion can last up to two years, while misdemeanor diversion extends for a maximum of one year.
The court maintains oversight through scheduled progress reviews. Treatment providers submit regular reports to the court, defense attorney, and prosecutor regarding the defendant's advancement through the program. This monitoring structure keeps all parties informed while holding participants accountable to their treatment obligations.
The diversion program California operates under PC 1001.36 shifts the focus from punishment to rehabilitation. Once the court grants diversion, no formal plea on the merits is required, and the case remains on hold throughout the treatment period. Participants engage with qualified mental health professionals who design individualized treatment plans addressing their specific diagnostic needs.
The treatment approach may include therapy sessions, psychiatric care, and medication management designed to stabilize functioning and address the symptoms that contributed to the criminal behavior. Unlike traditional prosecution that centers on guilt and sentencing, this framework prioritizes clinical goals and long-term recovery. The program acknowledges that incarceration can worsen psychiatric symptoms, while structured treatment provides tools for sustained wellness.
Participants work with their treatment providers to follow court-approved protocols. The prosecution remains suspended during this period, allowing defendants to concentrate fully on their mental health needs without concurrent trial proceedings. This pause in the criminal process removes the immediate pressure of potential conviction while defendants work toward recovery.
Successful completion of mental health diversion requires defendants to substantially comply with treatment requirements, avoid significant new law violations unrelated to their mental health condition, and establish a plan for ongoing mental health care. The court considers input from prosecution, defense, treatment providers, and probation (where applicable) when determining whether performance has been satisfactory.
When the defendant meets these standards, the court dismisses all criminal charges that were the subject of the diversion proceedings. Following dismissal, the clerk files an appropriate report with the Department of Justice indicating the case disposition. The arrest that led to diversion is then deemed never to have occurred. The court orders the arrest record sealed and restricts access in accordance with Section 1001.9.
This sealed status provides substantial practical benefits. Without the defendant's consent, records pertaining to the arrest, diversion application, or program participation cannot be used to deny employment, benefits, licenses, or certificates. Criminal justice agencies may still access these sealed records for specific law enforcement purposes, but the general public and most employers cannot view them during background checks.
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Defense attorneys initiate the diversion program California offers by filing a written motion with the court. The motion must include supporting documentation that establishes both eligibility and suitability for the program. Defendants must attach a psychiatric or psychological evaluation conducted by a qualified mental health professional, along with a proposed treatment plan.
The motion gets served on the prosecuting attorney, either the district attorney for felony cases or the city attorney for misdemeanor charges. Courts require electronic filing in many jurisdictions, with specific email addresses designated for mental health diversion submissions. Defense counsel should include all evidence supporting eligibility findings and explain why the defendant qualifies as suitable for diversion.
A forensic psychologist or psychiatrist conducts a comprehensive mental health evaluation to determine whether the defendant meets statutory criteria. The evaluation involves clinical interviews with the defendant and potentially family members, review of medical and legal records, and administration of psychological tests to assess mental health symptoms objectively.
The evaluator must document a qualifying DSM-5 diagnosis from within the last five years and explain how the mental disorder contributed to the alleged offense. The assessment addresses whether the defendant's symptoms would respond to mental health treatment and whether the individual presents an unreasonable risk to public safety. Treatment providers willing to accept the defendant must submit declarations confirming their capacity to deliver specialized mental health services.
The court schedules a hearing after the motion is filed, typically within four to six weeks. At the initial hearing, the judge reviews whether the defendant has made a prima facie showing of eligibility. The prosecution presents its position, which may include opposition to the motion or requests for additional information.
If the parties disagree on suitability, the court may schedule a contested hearing requiring expert testimony. The judge considers positions from both the defense and prosecution before deciding whether to exercise discretion in granting diversion. Courts evaluate whether the proposed treatment plan adequately addresses the defendant's specialized mental health needs.
Diversion periods vary based on charge severity. Felony charges allow treatment programs lasting up to two years. Misdemeanor charges limit diversion to one year. The court approves the specific treatment regimen, which may involve inpatient or outpatient services and can include substance abuse treatment where needed.
Courts hold periodic progress review hearings to monitor defendant performance, typically scheduled every 30 to 90 days. Treatment providers must submit progress reports no later than two days before each scheduled review. These reports get filed with the court and served on the prosecutor, detailing the defendant's advancement through treatment milestones.
If the defendant performs unsatisfactorily or faces new criminal charges during diversion, the court holds a hearing to determine whether proceedings should be reinstated, treatment modified, or the defendant referred for conservatorship.
The court concludes the defendant performed satisfactorily when three conditions are met: substantial compliance with diversion requirements, avoidance of significant new law violations unrelated to the mental health condition, and establishment of a long-term mental health care plan. Upon successful completion, the court dismisses all criminal charges that were subject to diversion proceedings.
Courts evaluate several mandatory criteria before granting pretrial diversion under PC 1001.36. All requirements must be satisfied for a defendant to access the diversion program California established through this statute. The eligibility framework addresses both clinical factors and legal considerations.
Defendants must have a diagnosed mental disorder listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Evidence of this diagnosis must come from treatment or evaluation within the last five years by a qualified mental health expert. Qualifying conditions include:
The statute explicitly excludes three diagnoses from eligibility: antisocial personality disorder, borderline personality disorder, and pedophilia. Mental health experts may rely on defendant examinations, medical records, arrest reports, or other relevant evidence when establishing the diagnosis.
The defendant's mental disorder must have been a significant factor in the commission of the charged offense. Senate Bill 1223 shifted the burden of proof on this requirement. If a defendant has been diagnosed with a qualifying mental disorder, the court shall find the disorder was a significant factor unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant's involvement in the alleged offense.
Courts may consider police reports, preliminary hearing transcripts, witness statements, provider statements, medical records, expert reports, or evidence that the defendant displayed symptoms consistent with the relevant disorder at or near the time of the offense.
Furthermore, a qualified mental health expert must opine that the defendant's symptoms causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. This clinical assessment determines whether treatment offers a viable alternative to prosecution.
Defendants must consent to diversion and waive their right to a speedy trial. This waiver allows the treatment period to extend beyond the timeframes normally required for criminal proceedings. Besides consenting to participate, defendants must agree to comply with treatment as a condition of diversion. A treatment plan meeting the defendant's specialized mental health needs must be in place before diversion begins.
The court must find the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider opinions from the district attorney, defense counsel, or qualified mental health experts. Accordingly, judges evaluate the defendant's treatment plan, violence and criminal history, current charged offense, and any other relevant factors when making this determination.
Both felony and misdemeanor charges can qualify for the diversion program California operates under PC 1001.36. The statute does not restrict eligibility based on charge severity alone. Instead, courts examine whether the specific offense falls within excluded categories.
Qualifying charges commonly include drug possession or sales, theft and property crimes, assault and battery, trespassing, and vandalism. Some domestic violence offenses may qualify in limited situations. The court retains discretion to deny diversion for crimes involving significant violence, great bodily injury, or high risk to public safety, even when the mental health criteria are met.
Senate Bill 215, effective January 1, 2019, established specific offense exclusions. Defendants charged with the following crimes cannot participate in mental health diversion:
These exclusions apply to the current charged offense. A prior record does not automatically disqualify an individual from mental health diversion.
DUI offenses are ineligible for mental health diversion under Vehicle Code Section 23640. Courts have consistently held that defendants charged with driving under the influence cannot access PC 1001.36 diversion.
The statute excludes individuals who pose a risk of committing a "super-strike" offense, including rape, murder, and child molestation. However, this assessment focuses on future risk rather than past conduct.
Defendants charged under the Three Strikes law face uncertain eligibility. The Three Strikes statutes expressly prohibit diversion for crimes under their provisions. While courts have not definitively resolved whether PC 1001.36 falls within this prohibition, the statutory language suggests Three Strikes defendants may be precluded from participating.
Successful completion of court-ordered treatment results in complete dismissal of the criminal case. This outcome represents a statutory right rather than a negotiated plea deal, designed specifically to prioritize rehabilitation. Upon dismissal under PC 1001.36(e), no conviction appears on the defendant's record. The court may conclude performance was satisfactory when the defendant substantially complied with treatment requirements, avoided significant new law violations unrelated to the mental health condition, and established a long-term mental health care plan.
The diversion program California created under PC 1001.36 shifts focus from penalizing defendants to addressing underlying mental health issues that contributed to the arrest. By prioritizing recovery over incarceration or probation, the program fosters better long-term stability and reduces the likelihood of future contact with the criminal justice system. This approach acknowledges that treatment often yields healthier outcomes for both the individual and the community.
Dismissal protects employment and licensing opportunities. Without diversion, cases can end in conviction with lasting consequences for employment, housing, and immigration status. By avoiding the stigma attached to a criminal sentence, individuals are better able to succeed professionally and secure stable housing. The clean record resulting from successful completion can greatly increase professional, educational, financial, and residential opportunities.
Upon successful completion, the arrest is deemed never to have occurred. Records pertaining to the arrest or diversion participation cannot, without the defendant's consent, be used to deny employment, benefits, licenses, or certificates. However, defendants must disclose the arrest when applying to be peace officers, and the California Department of Justice will disclose such arrests for these applications.
Mental health diversion under PC 1001.36 offers a valuable alternative for defendants whose mental health conditions contributed to criminal charges. Successfully completing the program means case dismissal, sealed records, and the ability to move forward without a conviction on your record.
Consequently, you can protect your employment prospects, housing opportunities, and future while receiving the treatment necessary for long-term stability. The program prioritizes recovery over punishment, recognizing that treatment produces better outcomes than incarceration.
If you face criminal charges and have a qualifying mental health disorder, consult with an experienced criminal defense attorney. They can evaluate your eligibility, gather the required documentation, and guide you through the diversion process effectively.
Every case deserves
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This page was reviewed and approved by William S. Kroger, a leading criminal defense attorney in Los Angeles. Mr. Kroger has decades of experience defending clients in both state and federal courts. He is recognized for his strong trial skills and dedication to protecting the rights of the accused. Throughout his career, he has successfully represented clients facing a wide range of serious criminal charges. His personalized defense strategies are designed to achieve the best possible outcome in every case. Clients trust Mr. Kroger for his knowledge, commitment, and proven results.
He is also an active member of respected legal organizations, including the American Bar Association and the National Association for Criminal Defense Lawyers. With his expertise and reputation, William S. Kroger is regarded as one of California’s top defense lawyers.
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