How Does Mental Health Diversion Work in California? Penal Code 1001.36 Explained
The short answer: mental health diversion under Penal Code section 1001.36 lets a judge pause a criminal case, send the defendant into a treatment program for up to two years on a felony or one year on a misdemeanor, and then dismiss the charges and seal the arrest if the treatment is completed. It applies to most misdemeanors and many felonies, it does not require a guilty plea, and the prosecutor cannot veto it. To qualify, you need a diagnosed mental disorder that played a role in the offense, a treatment plan that a qualified professional believes will work, and a showing that you will not pose an unreasonable risk of danger to the public. It is one of the most powerful tools in California criminal defense, and it is badly underused in the Inland Empire.
Why this matters. A large share of the people arrested in Riverside, San Bernardino, Ontario, Los Angeles, and Santa Ana are living with depression, bipolar disorder, PTSD, schizophrenia, or another diagnosable condition that had something to do with why they were arrested. For years the criminal system punished those people and cycled them back through the Riverside Hall of Justice, the San Bernardino Justice Center, and the Clara Shortridge Foltz Criminal Justice Center. Mental health diversion changes the outcome from a conviction to a dismissal, and it works in cases where the prosecutor would never offer a plea to a lesser charge. This guide explains the eligibility rules, the excluded offenses, the process at the courthouse, what the program looks like, and what happens if it goes wrong.
What Mental Health Diversion Is
Pretrial diversion, not a sentence. Penal Code section 1001.36 authorizes a court to grant pretrial diversion to a defendant who meets the statutory requirements. "Pretrial diversion" means the criminal proceedings are postponed at any point from the filing of the case until adjudication so the defendant can participate in mental health treatment. The case is not dismissed at the start, and it is not a plea bargain. The charges remain pending while you are in treatment, and they are dismissed at the end if you succeed.
No plea required. Unlike many older diversion programs, mental health diversion does not require a guilty or no contest plea. That matters for immigration, licensing, and employment, because no plea means no conviction is ever entered. The California Supreme Court held in People v. Frahs (2020) 9 Cal.5th 618 that the statute applies retroactively to cases that were not yet final when it took effect, which shows how significant the Legislature intended the remedy to be.
Timing of the request. In People v. Braden (2023) 14 Cal.5th 791, the California Supreme Court held that a request for mental health diversion must be made before the case is adjudicated, meaning before trial begins or before a guilty or no contest plea is entered. A defendant cannot wait to see how the trial goes and then ask for diversion. That makes it essential to raise the issue early, ideally at or shortly after arraignment.
Who Is Eligible for Mental Health Diversion
Two eligibility requirements. Under Penal Code section 1001.36, subdivision (b), a defendant is eligible if (1) the defendant has been diagnosed with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, other than antisocial personality disorder, borderline personality disorder, or pedophilia, and (2) the mental disorder was a significant factor in the commission of the charged offense. The diagnosis must be supported by evidence, including a recent diagnosis by a qualified mental health expert, and the court may consider the arrest report, medical records, and the expert's report in deciding whether the disorder was a significant factor.
The presumption that the disorder was a factor. Since the 2023 amendments, subdivision (b)(2) provides that if the defendant has been diagnosed with a qualifying mental disorder, the court must find that the disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor. This shifted the burden. In Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, the court of appeal granted relief where the trial court denied diversion without applying the presumption correctly. The practical effect is that a defendant with a documented diagnosis starts the hearing ahead, and the prosecutor must produce strong evidence to overcome the connection.
Four suitability requirements. Under subdivision (c), a defendant who is eligible must also be found suitable. The court must find (1) that in the opinion of a qualified mental health expert the defendant's symptoms motivating the criminal behavior would respond to treatment, (2) that the defendant consents to diversion and waives the right to a speedy trial, unless the defendant has been found incompetent to stand trial, (3) that the defendant agrees to comply with treatment as a condition of diversion, and (4) that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Penal Code section 1170.18, if treated in the community.
The dangerousness standard is narrow. The reference to Penal Code section 1170.18 is important. That statute defines "unreasonable risk of danger to public safety" as an unreasonable risk that the person will commit a new "super strike" offense, the short list of violent felonies in Penal Code section 667, subdivision (e)(2)(C)(iv), such as murder, certain sex offenses, and offenses punishable by life. A judge cannot deny diversion simply because the person might commit another misdemeanor or a non-violent felony. When prosecutors argue "dangerousness" in the Inland Empire, the defense should hold them to the statutory definition.
Which Charges Are Excluded From Mental Health Diversion
The excluded list. Under Penal Code section 1001.36, subdivision (d), diversion is not available to a defendant charged with murder or voluntary manslaughter, an offense requiring sex offender registration under Penal Code section 290 other than indecent exposure, rape, 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, continuous sexual abuse of a child, or a weapons of mass destruction offense. Everything else is potentially eligible, including felonies such as burglary, assault, criminal threats, vandalism, drug possession, and most theft offenses.
Domestic violence and DUI are not excluded, but read the fine print. Nothing in subdivision (d) excludes domestic violence charges under Penal Code section 273.5 or Penal Code section 243, subdivision (e)(1), and judges in Riverside and San Bernardino counties have granted mental health diversion in those cases, although the victim's input and the protective order under Penal Code section 136.2 weigh heavily. DUI is different. Vehicle Code section 23640 bars diversion in DUI cases, and the courts of appeal have applied that bar to mental health diversion as well as to misdemeanor diversion under Penal Code section 1001.95. If you are facing a DUI, plan on other defenses.
Comparison with other diversion programs. Misdemeanor diversion under Penal Code section 1001.95 is limited to misdemeanors and requires no diagnosis. Military diversion under Penal Code section 1001.80 is for current and former service members with service-related trauma, substance abuse, or mental health problems, and it is also limited to misdemeanors. Drug diversion under Penal Code section 1000 covers specified drug possession offenses. Mental health diversion is the only one of these that reaches felonies, which is why it is the program to evaluate first in any felony case where a diagnosis exists.
How the Process Works at the Courthouse
Step one: the evaluation. The request starts with a qualified mental health expert, usually a psychologist or psychiatrist retained by the defense, who reviews the police report, the client's history, and prior treatment records and produces a written report with a diagnosis, an opinion that the disorder was a significant factor in the offense, an opinion that the symptoms would respond to treatment, and a proposed treatment plan. In some counties the public defender's office and county behavioral health have a referral process; in private cases the defense hires the expert. Without a report, the motion goes nowhere.
Step two: the motion. Defense counsel files a written motion for mental health diversion, attaches the expert report and supporting records, and proposes a treatment plan that identifies the provider, the level of care, medication management if any, and how compliance will be reported to the court. The prosecutor files an opposition if it objects. The prosecutor's consent is not required, but Penal Code section 1001.36 directs the court to consider the prosecutor's position and the views of the victim.
Step three: the hearing. The judge holds a hearing, sometimes with testimony from the expert, and rules on eligibility and suitability. If diversion is granted, the court sets the length of the program and schedules progress reviews, typically every few months. Under subdivision (f), a felony program may last up to two years and a misdemeanor program up to one year. The court may refer the defendant to a county program, a private provider, or a combination, and it may order inpatient or outpatient treatment. Restitution to the victim remains an issue the court can address.
Where it happens. Mental health diversion motions are heard in the department handling the case: the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center, the Van Nuys and Pomona courthouses, the Central Justice Center in Santa Ana, and the Ventura County Hall of Justice. Some counties have a dedicated mental health court calendar or a collaborative court that handles diversion cases; ask the department clerk or check the court's current website for the local procedure.
What Happens During and After the Program
Progress reviews. While on diversion, you attend treatment, take medication as prescribed if that is part of the plan, and appear at review hearings where the provider's reports are filed with the court. Judges want to see attendance, engagement, and stability. Missing appointments or stopping medication without a doctor's approval is the fastest way to lose the program.
When diversion can be terminated. Under subdivision (g), the court may hold a hearing to decide whether to reinstate criminal proceedings if the defendant is charged with a new felony, is charged with a new misdemeanor reflecting a propensity for violence, engages in criminal conduct that makes the defendant unsuitable, performs unsatisfactorily in treatment, or is gravely disabled. The court can also modify the treatment plan rather than terminate. If criminal proceedings are reinstated, the case picks up where it left off, and nothing you said in treatment can be used against you in the way a plea could.
Dismissal and sealing on completion. If the defendant performs satisfactorily, the court dismisses the charges at the end of the diversion period under subdivision (h). The arrest upon which the diversion was based is deemed never to have occurred, the court orders the records sealed, and the defendant may answer that he or she was not arrested or diverted in most contexts, with an exception for applications to become a peace officer. This is a better result than expungement under Penal Code section 1203.4, because there is no conviction to dismiss in the first place, and it is why the program is worth the up-front cost of an expert evaluation.
Strategy: When to Ask for Mental Health Diversion
Felony cases with a documented diagnosis. Because misdemeanor diversion does not reach felonies, mental health diversion is often the only route to a dismissal in a felony case such as second degree burglary, vandalism over $400, criminal threats, or assault. A client with treatment history, a prior hospitalization, or a VA or county mental health file should be evaluated for diversion before any plea negotiation.
Cases where the facts are bad but the person is sympathetic. A prosecutor evaluating a case looks at the evidence, and when the evidence is strong the plea offers are harsh. Our guide on what prosecutors look at before filing charges explains that calculus. Mental health diversion sidesteps it: the question is not whether you did it but whether treatment is the right response.
Competency cases. When a defendant is found incompetent to stand trial under Penal Code section 1370, the court may consider mental health diversion as an alternative to commitment for restoration, and the consent requirement is relaxed. Families of defendants held in custody awaiting a state hospital bed should ask counsel about this option.
Pair it with other defenses. Requesting diversion does not waive a motion to suppress under Penal Code section 1538.5 or a challenge at the preliminary hearing. A defense lawyer can litigate the evidence and pursue diversion in parallel, and a weak case sometimes ends in a straight dismissal before diversion is needed.
Probation violations. A person already on probation who picks up a new case can sometimes have the new case diverted while the probation violation is resolved with treatment terms, which coordinates both matters around the same program.
Frequently Asked Questions
Do I have to plead guilty to get mental health diversion in California?
No. Penal Code section 1001.36 is pretrial diversion, and no guilty or no contest plea is required. You waive your right to a speedy trial and agree to comply with treatment, but no conviction is entered, and if you complete the program the charges are dismissed and the arrest is sealed.
Can the prosecutor block mental health diversion?
No, the judge decides. The prosecutor can oppose the motion and the court must consider the prosecutor's views and the victim's input, but the decision under Penal Code section 1001.36 belongs to the judge. The court may deny diversion only if the statutory eligibility or suitability requirements are not met, and a denial that misapplies the presumption can be challenged by writ, as in Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882.
Which mental health conditions qualify for diversion?
Any DSM diagnosis except three. The statute excludes antisocial personality disorder, borderline personality disorder, and pedophilia. Depression, bipolar disorder, PTSD, schizophrenia, schizoaffective disorder, anxiety disorders, and many others qualify if a qualified mental health expert provides a recent diagnosis and the disorder was a significant factor in the offense.
Is mental health diversion available for felonies?
Yes. Penal Code section 1001.36 applies to misdemeanors and felonies other than the offenses listed in subdivision (d), such as murder, voluntary manslaughter, and most sex offenses requiring registration under Penal Code section 290. Felony diversion may last up to two years.
Can I get mental health diversion for a DUI?
Generally no. Vehicle Code section 23640 bars diversion in DUI cases, and appellate courts have applied that bar to mental health diversion. Other DUI defenses remain available.
What happens if I fail mental health diversion?
The criminal case resumes where it stopped. Under subdivision (g) of Penal Code section 1001.36, the court holds a hearing before reinstating proceedings, and it may modify the treatment plan instead. If proceedings are reinstated, you still have every defense you had before, and no plea was entered, so the prosecutor must still prove the case.
Talk to a Criminal Defense Lawyer About Mental Health Diversion
Gramling Law Group pursues mental health diversion and other alternatives to conviction at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga and Victorville courthouses, the Clara Shortridge Foltz Criminal Justice Center, the Van Nuys and Pomona courthouses, the Central Justice Center in Santa Ana, and criminal courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so families know the cost of an evaluation and a diversion motion up front. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
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