California Penal Code section 1001.36 allows a criminal court to pause a qualifying case so the defendant can participate in mental health treatment instead of continuing immediately toward trial or a plea. The process is called pretrial mental health diversion. It is not automatic. The court must determine that the defendant meets the statute’s eligibility requirements, is suitable for treatment in the community, and is charged with an offense that the law permits to be diverted.
If diversion is granted, the criminal case remains on hold while the defendant follows an approved treatment plan. A felony case may generally be diverted for up to two years, while a misdemeanor case may generally be diverted for up to one year. Successful completion can lead to dismissal of the diverted charges and restrictions on access to the arrest record, subject to statutory exceptions.
Pretrial diversion postpones prosecution while a defendant receives mental health treatment. A request may arise at different points after charges are filed and before the case is adjudicated. The judge considers the positions of both the defense and prosecution, but the decision belongs to the court.
Diversion is different from being found not guilty, having charges dismissed at the outset, or being found incompetent to stand trial. It is a treatment-based path within an active criminal case. The defendant is expected to participate in a court-approved program, and the treatment provider submits progress reports to the court, defense, and prosecutor.
The program may be inpatient or outpatient. Treatment can use private resources, public resources, a county mental health agency, a collaborative court, or another appropriate provider. Availability matters: a public agency must agree to accept responsibility for treatment, and services remain subject to resources and eligibility.
The statute separates eligibility from suitability. Eligibility focuses first on the diagnosis and its relationship to the alleged offense.
The defense must provide evidence that the defendant has been diagnosed with a disorder identified in the current Diagnostic and Statistical Manual of Mental Disorders. The statute lists conditions such as bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder as examples. It excludes antisocial personality disorder and pedophilia.
The evidence must include a diagnosis or treatment for a diagnosed disorder within the previous five years by a qualified mental health expert. Depending on the case, the expert may consider an examination, medical records, police reports, and other relevant information. A qualified expert can include a psychiatrist, psychologist, or another professional whose education, training, skill, knowledge, or experience supports that role.
The mental disorder must have been a significant factor in the commission of the charged offense. Under the current statutory framework, once a qualifying diagnosis is shown, the court must find that connection unless clear and convincing evidence shows the condition was not a motivating, causal, or contributing factor.
The judge may review police reports, witness statements, preliminary-hearing testimony, medical records, expert reports, treatment-provider statements, and evidence of symptoms around the time of the alleged conduct. This inquiry is highly factual. A diagnosis alone does not answer every question about whether diversion is appropriate.
After eligibility, the court considers suitability. Penal Code section 1001.36 identifies several requirements:
When assessing public safety, a judge may consider the proposed treatment plan, the current charge, criminal and violence history, expert opinions, and the arguments of the parties. The court may also require an initial showing that the basic eligibility and suitability requirements can be met. That preliminary hearing may proceed through offers of proof, reliable hearsay, and counsel’s argument.
Meeting the listed criteria gives the court a basis to consider diversion; it does not make the ruling mechanical. The judge still exercises discretion after reviewing the individual record.
Section 1001.36 excludes several current charges. They include murder, voluntary manslaughter, rape, continuous sexual abuse of a child, certain offenses requiring sex-offender registration, and other specifically listed serious sexual or weapons-related offenses. The full list appears in subdivision (d) of the statute.
Because charging language and statutory cross-references matter, a person should not assume that a case qualifies based only on whether the charge is labeled a felony or misdemeanor. Counsel must compare the filed counts with the current text of the law.
The court approves a treatment program designed to address the defendant’s needs. The program may include therapy, psychiatric care, medication management, substance-use treatment when appropriate, case management, housing support, or other clinical services. The exact plan depends on the diagnosis, risk assessment, available programs, and court order.
Progress is monitored. The treatment provider sends regular reports, and the court may address compliance issues during the diversion period. A victim may request a hearing about restitution caused by the diverted offense. If restitution is owed, the court may order payment during diversion, but inability to pay because of indigence or a mental disorder is not by itself a reason to deny diversion or find noncompliance.
New criminal allegations, conduct suggesting the defendant is no longer suitable, or unsatisfactory performance can trigger a hearing. The judge may reinstate criminal proceedings, modify treatment, or consider another legally available response. A setback does not necessarily produce the same result in every case; the facts, expert input, and statutory grounds control.
If the defendant performs satisfactorily, the court dismisses the charges that were subject to diversion. The statute allows a court to find satisfactory performance when the defendant substantially complied with treatment, avoided significant new law violations unrelated to the mental health condition, and has a plan for long-term care.
After dismissal, the arrest is generally treated as though it did not occur, and access to the arrest record is restricted under California law. Important exceptions remain. Criminal justice agencies may still access certain records, and a person applying to become a peace officer may have separate disclosure duties. A diversion record may also be relevant if a court later considers another diversion request.
Records involving diagnosis and treatment receive statutory protections, but those protections also have exceptions. Defendants should discuss employment, licensing, firearm, immigration, and professional consequences with counsel when those issues are relevant. Dismissal through diversion should not be treated as a universal answer to every collateral consequence.
A well-supported request usually explains both the clinical condition and the practical treatment plan. Depending on the case, helpful material may include:
Timing matters because evaluations, records, funding, and program placement can take time to arrange. A California criminal defense attorney can review the charges, identify the evidence needed for the request, and present the proposed treatment plan in the context of the pending case.
Mental health diversion under Penal Code section 1001.36 is a structured, court-supervised process. A qualifying diagnosis is only the starting point. The court also examines the connection between the disorder and the alleged offense, likely response to treatment, the proposed program, consent and compliance, public safety, and whether the current charge is excluded.
This article is for informational purposes only and does not provide legal advice. Reading it or contacting the firm does not create an attorney-client relationship. The law and the facts of each case can change the analysis.
Questions About California Mental Health Diversion?
A case-specific review can clarify whether section 1001.36 may apply and what clinical and legal records the court may need.
