California Penal Code 1001.36 allows certain defendants with qualifying mental health disorders to receive treatment instead of criminal prosecution.
This program, known as Mental Health Diversion, is a form of pretrial diversion. If successfully completed, the criminal charges are dismissed, and the arrest record may be sealed.
The law was enacted in 2018 through Assembly Bill 1810 to address the growing number of defendants whose alleged criminal conduct was significantly influenced by a mental health disorder.
Mental Health Diversion is available in both misdemeanor and felony cases, but eligibility is not automatic. A judge must approve participation after reviewing statutory requirements.
Your best chance for a favorable outcome is with an experienced California criminal defense attorney at Eisner Gorin LLP. To schedule a consultation, call (818) 781-1570 or contact us here.
What Is Mental Health Diversion?
Mental Health Diversion under Penal Code 1001.36 allows criminal proceedings to be paused while a defendant undergoes mental health treatment.
If the defendant successfully completes the program:
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The criminal charges are dismissed
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The arrest record is sealed
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The case does not proceed to trial
If the program is not successfully completed, prosecution resumes.
Who Is Eligible for Mental Health Diversion?
A defendant may qualify for Penal Code 1001.36 diversion if all of the following conditions are met:
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The defendant suffers from a qualifying mental disorder
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The mental disorder was a significant factor in committing the offense
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A qualified mental health professional believes the defendant would benefit from treatment
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The defendant consents to diversion and waives the right to a speedy trial
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The defendant agrees to comply with treatment conditions
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The court finds the defendant does not pose an unreasonable risk to public safety
Each element must be established before a judge may grant diversion.
What Mental Health Conditions Qualify?
The disorder must be listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM).
Common qualifying conditions include:
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Schizophrenia
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Bipolar disorder
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Post-traumatic stress disorder (PTSD)
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Major depressive disorder
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Anxiety disorders
Disorders such as Antisocial Personality Disorder and pedophilia do not qualify.
A recent diagnosis from a qualified mental health professional is required. The professional will typically review:
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Medical records
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Prior treatment history
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Arrest reports
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Personal interviews
A written report is submitted to the court, and testimony may be required.
Must the Mental Disorder Be Linked to the Crime?
Yes. The court must find that the mental disorder was a significant contributing factor in the alleged offense.
Judges review evidence such as:
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Police reports
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Witness statements
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Preliminary hearing transcripts
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Psychiatric evaluations
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Medical history
The mental health professional must state that the symptoms contributed to the alleged criminal conduct and are likely to respond to treatment.
Public Safety Consideration
The judge must determine that the defendant does not pose an unreasonable risk of danger to public safety.
In making this determination, the court may consider:
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Criminal history
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Nature and seriousness of the current offense
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Input from the prosecutor
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Recommendations from mental health professionals
Violent offenses may still qualify, but courts carefully evaluate risk.
Length and Structure of the Diversion Program
The Mental Health Diversion program may last up to two years.
Treatment may include:
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Inpatient hospitalization
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Outpatient therapy
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Psychiatric medication management
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Counseling and case management
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Substance abuse treatment (if applicable)
The treatment plan must be approved by the court.
Monitoring and Court Oversight
The treatment provider must submit periodic progress reports to the court.
If issues arise, the court may schedule a hearing.
Hearings may occur if:
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The defendant is charged with a new offense
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The defendant violates program rules
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A mental health provider reports non-compliance
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The defendant becomes unsuitable for treatment
If the court finds non-compliance, diversion may be terminated and prosecution resumed.
Successful Completion of Mental Health Diversion
A defendant is considered successful if they:
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Substantially comply with treatment
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Avoid new criminal conduct unrelated to the disorder
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Develop a long-term mental health care plan
Upon successful completion:
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Charges are dismissed
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The arrest is sealed
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The case is closed
This outcome avoids a criminal conviction.
What Happens If Diversion Is Not Completed?
If the defendant fails to complete the program:
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Criminal proceedings resume
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The original charges are reinstated
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The case proceeds toward trial or sentencing
Frequently Asked Questions About Penal Code 1001.36
Is Mental Health Diversion available for felonies?
Yes. Both misdemeanor and felony charges may qualify, subject to judicial approval.
Does diversion guarantee dismissal?
Only if the program is successfully completed.
Do I have to plead guilty to enter diversion?
No. Diversion occurs before trial, and no conviction is entered if completed successfully.
How long does the program last?
Up to two years, depending on treatment needs and court approval.
Can violent offenses qualify?
Some violent offenses may qualify, but courts carefully evaluate public safety risk.
Is my record sealed after completion?
Yes. Upon dismissal, the arrest record may be sealed.
Related California Offenses and Alternative Diversion Programs
Mental Health Diversion under Penal Code 1001.36 is often considered in cases where a defendant's mental health condition significantly contributed to criminal conduct. It may intersect with or be compared to other diversion programs and related legal provisions.
Penal Code 1000 – Deferred Entry of Judgment (Drug Diversion)
Penal Code 1000 allows eligible defendants charged with certain non-violent drug possession offenses to complete a treatment program instead of proceeding through traditional prosecution. Upon successful completion, charges are dismissed. Unlike mental health diversion, PC 1000 is limited primarily to drug-related offenses.
Proposition 36 – Drug Treatment Diversion
Proposition 36 provides court-supervised drug treatment instead of incarceration for eligible non-violent drug offenders. While PC 1001.36 focuses on mental health disorders, Proposition 36 is specifically designed for substance abuse-related offenses.
Penal Code 1370 – Competency to Stand Trial
Penal Code 1370 applies when a defendant is found mentally incompetent to stand trial. This statute addresses a defendant's present ability to understand court proceedings and assist counsel, which differs from mental health diversion that focuses on treatment for disorders contributing to the offense.
Penal Code 1368 – Competency Proceedings
Penal Code 1368 outlines procedures for suspending criminal proceedings if a defendant may be mentally incompetent. While related to mental health issues, this statute addresses competency rather than diversion.
Penal Code 1203.1 – Formal Probation
In some cases where diversion is not granted, courts may impose formal probation with mandatory mental health counseling as a condition. Unlike diversion, probation follows a conviction and does not result in dismissal of charges.
Veterans Treatment Court
Veterans charged with crimes linked to service-related trauma, PTSD, or substance abuse may qualify for Veterans Treatment Court. This specialized program is similar in structure to mental health diversion but tailored specifically to military veterans.
Penal Code 1170.9 – Military Diversion
Penal Code 1170.9 provides sentencing alternatives for military veterans suffering from PTSD, traumatic brain injury, or substance abuse resulting from service. This provision may overlap with mental health diversion eligibility.
Why Understanding Related Programs Matters
Mental Health Diversion under Penal Code 1001.36 is not the only path to treatment-based resolution. Depending on the charges, criminal history, and specific diagnosis, a defendant may qualify for:
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Mental Health Diversion
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Veterans diversion
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Competency restoration
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Court-supervised probation with treatment
An experienced criminal defense attorney can determine which program offers the best opportunity to avoid conviction and protect your record.
Why Early Legal Representation Matters
Mental Health Diversion requires:
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Proper diagnosis documentation
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Persuasive legal argument
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Strategic negotiation with the prosecutor
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Comprehensive presentation to the court
A skilled criminal defense attorney can:
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Coordinate with mental health professionals
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Present evidence linking the disorder to the offense
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Address public safety concerns
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Maximize the likelihood of approval
Contact a Criminal Defense Lawyer for Mental Health Diversion
If you or a loved one has been charged with a crime in California and suffers from a mental health disorder, you may qualify for diversion under Penal Code 1001.36.
Successful completion can mean dismissal of charges and a sealed record.
Our experienced criminal defense attorneys can evaluate your eligibility, coordinate with mental health professionals, and advocate for diversion before trial.
Eisner Gorin LLP is here to help. Contact our office today to review your case and determine whether Mental Health Diversion may be available in your situation.
If you have one phone call from jail, call us! If you are facing criminal charges,