Mental Health Diversion in California: Eligibility, Treatment, and AB 46

Mental health diversion in California is a program under Penal Code 1001.36 that lets a judge pause a criminal case and send an eligible defendant into treatment instead of prosecution. If the defendant finishes the program, the charges are dismissed and the arrest is treated as if it never happened. Diversion can last up to two years for a felony and up to one year for a misdemeanor, and it covers most charges apart from a specific list of serious violent and sexual offenses.¹

Who Qualifies

Qualifying is a two-step test. First the defendant has to meet the statutory eligibility criteria. Then the court has to separately find the defendant suitable. Both steps are required, and a judge who is satisfied on one can still say no on the other.

Eligibility starts with a diagnosis. The defendant must have a mental disorder listed in the current Diagnostic and Statistical Manual of Mental Disorders. The statute specifically names bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder, but any recognized DSM condition can qualify. Two diagnoses are excluded outright: antisocial personality disorder and pedophilia.¹

The defense has to back the diagnosis with evidence from a qualified mental health professional dated within the last five years. The expert can rely on a direct examination, medical records, or other relevant material.

The disorder also has to have been a significant factor in the charged offense. This is where the statute tilts in the defendant’s favor. Once a qualifying diagnosis is on the table, the court must presume the disorder was a significant factor unless the prosecution shows by clear and convincing evidence that it was not a motivating, causal, or contributing factor. That presumption is one of the most powerful features of the program.¹

What the Judge Has to Find on Suitability

Clearing the eligibility bar isn’t enough. The court also has to be satisfied on four suitability points: that a qualified expert believes the defendant’s symptoms would respond to treatment; that the defendant consents to diversion and waives the right to a speedy trial; that the proposed treatment program will actually meet the defendant’s needs; and that the defendant won’t pose an unreasonable risk of danger to public safety if treated in the community. The judge can also weigh the prosecutor’s and defense’s positions, the defendant’s criminal and violence history, the current charges, and any other relevant factor.¹

The public-safety standard sounds broad, but it isn’t. It ties back to Penal Code 1170.18, and it means an unreasonable risk that the defendant will commit a “super strike” offense: sexually violent crimes, certain sex offenses against children, or an offense punishable by life in prison or death.² A record of minor violence doesn’t automatically disqualify someone. The question is whether community-based treatment would create an unreasonable risk of something at that far end of the spectrum.

Charges That Can’t Be Diverted

Most misdemeanors and felonies are at least theoretically eligible, including serious felonies like robbery, assault with a deadly weapon, and arson. The statute carves out a specific list that cannot be diverted no matter what the defendant’s mental health condition looks like:

Murder or voluntary manslaughter
Rape
Lewd or lascivious acts on a child under 14
Assault with intent to commit rape, sodomy, or oral copulation
Rape or sexual penetration committed in concert with another person
Continuous sexual abuse of a child
Any offense requiring sex offender registration, except indecent exposure under Penal Code 314
Use of weapons of mass destruction under Penal Code 11418(b) or (c)

The more serious the eligible charge, the harder it gets to convince a judge the defendant clears the public-safety finding.¹

How to Ask for Diversion

The defense files a motion for pretrial diversion under Penal Code 1001.36. The motion has to include evidence of eligibility and a proposed treatment plan. The defendant enters a not-guilty plea and waives the right to a speedy trial, which stops the prosecution clock while diversion runs.

The heaviest lift is usually assembling the supporting materials. You need a mental health evaluation that connects the diagnosis to the alleged conduct, a treatment plan the court will approve, and enough documentation to answer the public-safety question. That takes coordination between the attorney, the evaluating expert, and the treatment provider before the hearing.

One boundary worth noting: if a defendant has been found incompetent to stand trial and can’t consent or waive speedy trial, the court can still place them in diversion instead of committing them to a state hospital for competency restoration. The Department of State Hospitals runs a separate diversion track for those felony defendants.³

Treatment, Monitoring, and How Long It Lasts

The treatment plan is central to getting in and staying in. It can be inpatient or outpatient, and it can be funded privately or publicly. Referrals can go to county mental health agencies, collaborative courts, or assisted outpatient treatment programs, provided those entities agree to accept the defendant and have room to serve them.¹

Once diversion is granted, the treatment provider files regular progress reports with the court, the defense, and the prosecutor. Those reports are how the judge tracks compliance.

The maximum diversion period is two years for a felony and one year for a misdemeanor. The clock starts when the court grants diversion, and the defendant has to show satisfactory progress within that window to earn dismissal.

Costs to Plan For

The statute doesn’t spell out costs, but two categories usually come up. Forensic mental health evaluations, which are essential to establish the diagnosis and the significant-factor connection, generally run between about $1,250 and $10,000 depending on the case’s complexity and the expert’s rates. Some counties charge administrative or enrollment fees for the diversion program itself, typically from nothing up to around $500. Indigent defendants may be able to get evaluation costs covered through the public defender’s office or county mental health resources, though that depends on local funding.

What You Get If You Complete the Program

Completion produces a real outcome. The court dismisses all charges that were pending when diversion was granted. To find satisfactory performance, the court looks at whether the defendant substantially complied with treatment, avoided significant new law violations unrelated to the mental health condition, and has a plan for ongoing care.

The record relief is broader than an ordinary dismissal. Once charges are dismissed, the underlying arrest is deemed never to have occurred. Access to the arrest record is restricted under Penal Code 1001.9, and the person can legally answer questions about their criminal history by saying they were not arrested or diverted for the offense.¹ Narrow exceptions apply to certain government inquiries, but for employment, housing, and most professional licensing, the arrest functionally disappears.

What Can End Diversion Early

If problems come up during diversion, the court holds a hearing to decide whether to reinstate the criminal case, modify treatment, or in some situations refer the defendant for conservatorship. The statute lists the triggers that require a hearing:

A new misdemeanor charge that reflects a propensity for violence
Any new felony charge during diversion
Ongoing criminal conduct that makes the defendant unsuitable
A qualified expert’s finding that the defendant is performing unsatisfactorily in treatment
A qualified expert’s finding that the defendant is gravely disabled

Termination isn’t automatic. The judge can modify treatment instead of ending diversion. If diversion does end, the original charges are reinstated and the case moves forward as if the pause never happened.¹

If You’re a Veteran, Look at the Other Statute Too

California has a separate pretrial diversion program for military veterans under Penal Code 1001.80. It covers a broader set of conditions, including sexual trauma, traumatic brain injury, PTSD, substance abuse, and mental health problems that resulted from military service. For misdemeanor charges, the veteran only has to show the condition may exist. For felonies, the condition must have been a significant factor in the offense.⁴ A veteran who could qualify under either statute should talk with counsel about which pathway is a better fit.

Changes That Could Come Under AB 46

The 2025–2026 legislative session includes Assembly Bill 46, which would tighten the program in several ways if enacted. The bill would remove the presumption that the disorder was a significant factor, putting the full burden on the defense to prove the connection. It would lower the safety standard from “unreasonable risk of danger” to simply “risk of danger,” giving judges a lower threshold for denying diversion. It would add attempted murder to the list of excluded offenses. And it would add conduct disorder that causes or threatens physical harm to people or animals to the excluded-diagnosis list alongside antisocial personality disorder and pedophilia.

As of early 2026, AB 46 is not law. The rules described here are the current ones. If the bill passes, the significant-factor and public-safety findings will get materially harder for defendants seeking diversion.

1
California Legislative Information. California Penal Code 1001.36
2
California Legislative Information. California Penal Code 1170.18
3
California Department of State Hospitals. DSH Diversion Program
4
California Legislative Information. California Penal Code 1001.80