Mental Health Diversion under California Penal Code 1001.36 is a pretrial court diversion program that allows defendants diagnosed with qualifying mental disorders to receive mental health treatment instead of proceeding through traditional criminal prosecution. Pretrial diversion refers to the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the moment charges are filed until adjudication, enabling defendants to undergo mental health treatment.
Assembly Bill 1810 established this program on June 27, 2018, creating Penal Code sections 1001.35 and 1001.36 for the discretionary diversion of qualified persons who committed crimes because of mental disorders. The Legislature subsequently amended section 1001.36 through Senate Bill 215, effective January 1, 2019, and again through Senate Bill 1223, effective January 1, 2023.
The court may grant mental health diversion at any time after filing an accusatory pleading, up to the point of adjudication, for misdemeanor or felony offenses not specifically excluded by statute. This pre-plea diversion program does not require defendants to enter a plea or make an admission before participation. The program operates independently of the defendant's competency to stand trial; neither counsel nor the court must make a declaration or finding regarding incompetence before initiating the diversion process. The program's purpose focuses on treating underlying mental disorders rather than securing trial competency.
The diversion period extends no longer than two years for felony charges and one year for misdemeanor charges. Treatment providers must submit regular reports to the court, defense, and prosecutor regarding the defendant's progress throughout the program. Upon successful completion, the court dismisses the criminal charges that were subject to diversion. The arrest upon which the diversion was based becomes deemed never to have occurred, and the court orders the arrest record sealed in accordance with Section 1001.9.
California's Supreme Court ruled in People v. Frahs (2020) that PC 1001.36 applies retroactively to cases not yet final on appeal. Treatment may be procured using private or public funds, with referrals made to county mental health agencies, collaborative courts, or assisted outpatient treatment programs that agree to accept responsibility for the defendant's treatment.
Defendants seeking diversion must satisfy eligibility criteria under subdivision (b) and suitability factors under subdivision (c) of Penal Code 1001.36. The court evaluates both components before granting pretrial diversion.
A defendant must have been diagnosed with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Evidence of the mental disorder must include a diagnosis or treatment within the last five years by a qualified mental health expert. Qualifying disorders include bipolar disorder, schizophrenia, schizoaffective disorder, post-traumatic stress disorder, major depressive disorder, and anxiety disorders.
The statute excludes antisocial personality disorder and pedophilia from eligibility. Borderline personality disorder presents mixed application, with some courts excluding it while others permit diversion based on case-specific evidence. Qualified mental health experts may rely on examinations of the defendant, medical records, arrest reports, or other relevant evidence when rendering diagnostic opinions.
The defendant's mental disorder must have been a significant factor in the commission of the charged offense. The court shall find that the mental disorder was a significant factor unless clear and convincing evidence demonstrates it was not a motivating, causal, or contributing factor to the defendant's involvement in the alleged offense. Courts may consider police reports, preliminary hearing transcripts, witness statements, statements by mental health treatment providers, medical records, reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
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. The defendant must consent to diversion and waive the right to a speedy trial, unless found incompetent to provide such consent. The defendant must agree to comply with treatment as a condition of diversion.
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 of the district attorney, defense counsel, or qualified mental health experts, and may evaluate the defendant's treatment plan, violence and criminal history, the current charged offense, and any other relevant factors.
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Defense counsel initiates the diversion request by filing a motion under Penal Code 1001.36, which must include supporting evidence and a proposed treatment plan. The motion requires psychiatric evaluations, treatment provider declarations, and documentation establishing the connection between the mental disorder and the charged offense. Courts evaluate the prosecution's position on the motion and may request additional information before proceeding.
The defendant must enter a not guilty plea and waive the right to a speedy trial before the court grants diversion. The court schedules an eligibility hearing where both parties present their positions, evidence, and arguments regarding suitability for court diversion programs. The judge may conduct an informal hearing proceeding on offers of proof, reliable hearsay, and argument of counsel to determine whether a prima facie showing of eligibility exists. If the prima facie showing is not established, the court may summarily deny the request or grant other appropriate relief.
When the court grants diversion, criminal proceedings are postponed while the defendant participates in an approved treatment program. The court considers the defense request, prosecution request, defendant's needs, and community interests before approving the treatment program. Treatment may utilize inpatient or outpatient mental health resources procured through private or public funds. The court may refer defendants to county mental health agencies, collaborative courts, or assisted outpatient treatment programs that agree to accept responsibility for treatment.
The treatment provider submits regular progress reports to the court, defense, and prosecutor documenting the defendant's compliance and treatment advancement. The court conducts periodic progress review hearings to monitor performance and determine satisfactory participation. The diversion period extends no longer than two years for felony charges and one year for misdemeanor charges.
Upon successful completion, the court dismisses the charges that were subject to the criminal proceedings at the time of diversion. Successful completion requires 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. The arrest record becomes sealed following dismissal. If the defendant performs unsatisfactorily, violates conditions, or commits new offenses, the court conducts a hearing to determine whether criminal proceedings should be reinstated.
Successful completion of court diversion programs under PC 1001.36 results in dismissal and sealing of criminal charges, eliminating the conviction from the defendant's record. The arrest upon which the diversion was based becomes deemed never to have occurred, and records generated during application or participation cannot be used without the defendant's consent to deny employment, benefits, licenses, or certificates. This outcome distinguishes mental health diversion from traditional prosecution, where convictions create permanent criminal records that affect future opportunities.
The treatment-focused approach addresses underlying mental disorders causing or contributing to criminal behavior rather than imposing punitive measures. Participants access comprehensive psychiatric care, including therapy and medication, which helps develop coping mechanisms and establish long-term stability. This therapeutic intervention reduces recidivism rates by 40-60%, demonstrating lower reoffense rates compared to traditional sentencing approaches. Defendants avoid incarceration in facilities often ill-equipped to meet mental health needs, providing safer outcomes for vulnerable individuals.
The absence of a criminal conviction preserves access to housing, employment, and educational opportunities that would otherwise be restricted by criminal history requirements. Professional licensing boards and educational institutions frequently deny applications based on criminal records, making the sealed outcome particularly valuable for career advancement. The program eliminates the lifelong stigma associated with criminal justice system involvement, preventing impacts on personal relationships and community standing.
Society benefits through reduced incarceration expenses, with California saving USD 2.50 billion in costs that average USD 80,000 annually per inmate. Communities experience decreased property crime rates, which fell 60% since the early 1990s, partially attributed to criminal justice reforms including diversion programs. The treatment-focused model creates safer communities for California's 39.53 million residents by addressing root causes of criminal behavior rather than cycling individuals through correctional facilities. Victims gain advantages through restorative justice components emphasizing rehabilitation over punishment, though participation in diversion decisions varies by jurisdiction.
California Penal Code 1001.36 subdivision (d) excludes specific criminal offenses from eligibility for court diversion programs. Murder and voluntary manslaughter constitute the first category of ineligible offenses, preventing diversion for the most serious homicide charges.
Sex offenses form the largest exclusionary category. Defendants charged with offenses requiring registration pursuant to Section 290 cannot receive diversion, with the sole exception of Section 314 violations for indecent exposure. Rape charges under any circumstances remain ineligible for diversion consideration. Lewd or lascivious acts on children under 14 years of age similarly fall outside the program's scope. Assault with intent to commit rape, sodomy, or oral copulation violating Section 220 cannot be diverted. Additionally, commission of rape or sexual penetration in concert with another person under Section 264.1 and continuous sexual abuse of a child under Section 288.5 are expressly excluded.
Violations of Section 11418 subdivisions (b) or (c) involving weapons of mass destruction represent another excluded category. Vehicle Code Section 23640 prohibits diversion for DUI offenses. These amendments took effect January 1, 2019, through Senate Bill 215.
The statute does not automatically exclude violent felonies such as assault or robbery. Whereas serious violent offenses may receive case-by-case evaluation, defendants previously convicted of super strikes under Section 667(e)(2)(C) face potential denial based on public safety considerations, though the court retains discretion in such determinations. Courts apply these exclusions to current charged offenses at the time of the diversion request.
Proper documentation forms the foundation for successful participation in court diversion programs. Courts deny motions lacking comprehensive supporting evidence, requiring defense counsel to submit complete packets demonstrating both eligibility and suitability.
Defense counsel must attach all evidence supporting eligibility findings, including diagnostic evidence from psychological evaluations, psychiatric reports, and prior mental health history. The defendant's mental disorder requires documentation of diagnosis or treatment within the last five years by a qualified mental health expert. Medical records from Veterans Affairs facilities or other healthcare providers strengthen the evidentiary foundation. Courts expect nexus evidence explaining how and why the disorder contributed to the offense, with reports detailing the causal relationship between symptoms and criminal behavior. Missing any component of this documentation package results in summary denial at the initial review stage.
Treatment plans must include specific details rather than hypothetical or vague descriptions. The plan shall identify the provider, treatment modality such as cognitive behavioral therapy or dialectical behavior therapy, medication management protocols, frequency of sessions, expected progress timeline, and compliance monitoring procedures. Orange County courts commonly expect detailed treatment plans at the initial hearing, as opposed to diagnostic letters alone. Many courts require at least weekly therapy sessions and periodic psychiatric monitoring in serious cases. Enrollment confirmations or acceptance letters from treatment providers must be prepared before the hearing, as their absence constitutes a common reason for motion denial.
Providers must submit regular written progress reports to the court, defense, and prosecutor documenting compliance, treatment advancement, and symptom management. Defense counsel shall file these reports and serve them on the prosecutor no later than two days prior to progress review hearings. Both Los Angeles and Orange County courts will revoke diversion if progress reports arrive late. Missing reports trigger court hearings to address non-compliance.
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