Mental Health Diversion in California (Penal Code § 1001.36)
Treating the Root Cause of Criminal Charges
California’s mental‑health diversion statute recognizes that some criminal conduct stems from untreated mental illness. Enacted in 2018 and codified at Penal Code §§ 1001.35–1001.36, the law allows judges to suspend criminal proceedings and steer eligible defendants into mental‑health treatment instead of jail or prison. The goal is rehabilitation and public safety: if the defendant completes treatment, the court dismisses the charges and the arrest is treated as though it never occurred for most purposes. This pretrial program offers a powerful alternative for people whose mental disorders played a significant role in their alleged offense.
Who Qualifies for Mental‑Health Diversion?
To be eligible, a defendant must satisfy all of the following requirements:
- Diagnosed mental disorder – The defendant has been diagnosed with a mental disorder listed in the DSM‑5, such as bipolar disorder, schizophrenia, schizoaffective disorder or PTSD. Antisocial personality disorder, borderline personality disorder and pedophilia are excluded. A qualified mental‑health expert must have diagnosed or treated the disorder within the last five years.
- Mental disorder contributed to the offense – The disorder must have been a significant factor in the commission of the charged offense. Courts presume the disorder played a significant role unless there is clear and convincing evidence to the contrary.
- Symptoms respond to treatment – A mental‑health expert must opine that the defendant’s symptoms would respond to treatment.
- Consent and waiver of speedy trial – The defendant must consent to diversion and waive their right to a speedy trial.
- Agreement to comply with treatment – The defendant must agree to follow the treatment plan as a condition of diversion.
- No unreasonable risk to public safety – The court must be satisfied that treatment in the community will not pose an unreasonable risk of danger to public safety.
These criteria mirror the list provided by the Judicial Council and are confirmed by legal analyses and commentary. Meeting all six requirements is critical; failure to satisfy any one of them renders the defendant ineligible.
Offenses Ineligible for Diversion
Although the statute applies to both misdemeanors and felonies, certain serious crimes are excluded. Defendants charged with the following offenses are not eligible:
- Murder or voluntary manslaughter;
- Sex offenses requiring registration (except indecent exposure under § 314);
- Rape and lewd or lascivious acts on a child under 14;
- Assault with intent to commit rape, sodomy or oral copulation;
- Rape or sexual penetration in concert with another person;
- Continuous sexual abuse of a child;
- Offenses involving weapons of mass destruction;
- DUI – Driving under the influence (VC § 23152).
If you are charged with one of these crimes, mental‑health diversion is not available. However, other diversion programs (such as mental‑health court or misdemeanor diversion) may still be possible.
How the Mental‑Health Diversion Process Works
1. Petition and prima facie showing. Your attorney files a motion requesting diversion, supported by evidence of diagnosis, treatment history and a proposed treatment plan. You must plead not guilty and waive your right to a speedy trial. The court conducts an initial hearing to determine whether you have made a prima facie showing of eligibility and whether the proposed plan is appropriate.
2. Court hearing on suitability. If the prima facie showing is made, the court holds a hearing (often informal, using offers of proof and reliable hearsay) to decide whether to grant diversion and approve the treatment plan. The prosecution may contest eligibility or suitability. The defense bears the burden of proving eligibility beyond a preponderance of the evidence.
3. Treatment and monitoring. Diversion lasts up to two years for felony charges and up to one year for misdemeanors. The court orders specific treatment conditions and schedules periodic progress reports from the provider. The treatment may be inpatient or outpatient and can be funded privately or through county mental‑health programs.
4. Completion or termination. If you substantially comply with treatment, avoid new serious law violations and have a plan for ongoing mental‑health care, the court must dismiss the charges at the end of diversion. The arrest is sealed for most purposes, allowing you to truthfully state that you were never arrested or charged. If you fail to comply, commit new crimes or pose a risk, the court may hold a hearing and reinstate criminal proceedings.
Why Mental‑Health Diversion Matters
Mental‑health diversion acknowledges that punishing individuals whose criminal behavior stems from mental illness often fails to address the underlying problem. By requiring treatment and monitoring instead of incarceration, the program aims to reduce recidivism and improve public safety. At the same time, it gives defendants a chance to avoid the lifelong consequences of a criminal conviction and to access the mental‑health services they need.
Navigating the Process with Radford & Rome, LLP
Successfully obtaining mental‑health diversion requires careful documentation, expert testimony and persuasive advocacy. Courts look closely at whether the mental disorder contributed to the offense and whether treatment can address the issue. The attorneys at Radford & Rome, LLP are former prosecutors who understand how judges evaluate these motions. We represent clients across Los Angeles and Southern California and can guide you through each step—from gathering medical records and drafting the petition to appearing at hearings and ensuring compliance with the treatment plan. If you or a loved one is facing charges and suffers from a mental illness, contact us to explore whether mental‑health diversion may provide a path to both recovery and dismissal.