California’s mental health diversion law, codified in Penal Code Section 1001.36, lets a judge pause a criminal prosecution and send an eligible defendant into treatment instead of jail. If you have a qualifying mental health diagnosis that played a significant role in the charged offense, the court can place you in a treatment program lasting up to two years for felonies or one year for misdemeanors. Finish the program and the charges are dismissed, with the arrest sealed as if it never happened.
Who Qualifies
Eligibility has two prongs, and both have to be met.
The first is a diagnosis. You need a mental disorder listed in the current Diagnostic and Statistical Manual of Mental Disorders. The statute specifically names bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD as examples, but any qualifying DSM diagnosis can work. Two are categorically excluded: antisocial personality disorder and pedophilia. The diagnosis has to come from a qualified mental health expert and reflect treatment or evaluation within the past five years.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
The second is a causal link: the disorder must have been a significant factor in the charged offense. Here the statute favors defendants. Once you produce a qualifying diagnosis, the court must presume the disorder was a significant factor unless the prosecution rebuts that presumption with clear and convincing evidence. To evaluate the link, courts look at police reports, witness statements, medical records, preliminary hearing transcripts, and evidence that you were showing symptoms around the time of the offense.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
Suitability the Court Must Also Find
Clearing the eligibility bar isn’t the end. The court still has to find you suitable. A qualified mental health expert has to conclude that your symptoms would actually respond to treatment. You have to consent to diversion and waive your right to a speedy trial. And the court must determine that diversion would not pose an unreasonable risk of danger to public safety.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
That “unreasonable risk” language has a specific meaning borrowed from Proposition 47 (Penal Code Section 1170.18): the risk that must be unreasonable is the risk you will commit a new super-strike violent felony, not the risk of any new offense. That is narrower than most people assume, and it means defendants with real criminal histories can still qualify if the super-strike risk is low. The court weighs your violence history, the current charges, the proposed treatment plan, and arguments from both sides.
Offenses That Cannot Be Diverted
Diversion applies to both misdemeanors and felonies, and the exclusion list is narrower than most people expect. It does not bar all serious or violent felonies. The specific charges that cannot be diverted are:
- Murder or voluntary manslaughter
- Offenses requiring sex offender registration under Section 290, except indecent exposure under Section 314
- 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 with another person
- Continuous sexual abuse of a child
- Use of weapons of mass destruction under Section 11418(b) or (c)
Everything else is technically eligible, including many felonies classified as “serious” or “violent” elsewhere in the Penal Code. Robbery, assault with a deadly weapon, and burglary, for example, are not on the exclusion list. Whether the court actually grants diversion for those charges turns on the suitability analysis, especially the public safety piece.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
How the Process Moves Through Court
Either your defense attorney or the court itself can raise diversion at any pretrial stage. The court can require a prima facie showing of eligibility up front. That initial hearing is informal and can proceed on offers of proof, reliable hearsay, and argument from counsel, with no full evidentiary hearing. If you cannot clear this threshold, the court can deny the request without going further.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
If the showing is adequate, the court moves to a fuller evaluation involving expert evaluations, medical records, and argument from both sides. The prosecution gets to weigh in at every stage, and contested cases often turn on competing expert opinions about the diagnosis, the causal link, or the public safety risk. If the court grants diversion, you formally consent and waive speedy trial rights before entering a program.
Treatment Programs and Who Pays
Once diversion is granted, the court approves an inpatient or outpatient program built around your mental health needs. Treatment can include therapy, medication management, residential care, or some combination. The court considers input from both sides along with your clinical needs and community safety before signing off.
Funding can come from private or public sources. If you cannot afford private care, the court may refer you to a county mental health agency or an existing collaborative court. There is an important condition: the county agency must agree to accept responsibility for your treatment, and services are only available to the extent county resources exist. If a county agency determines it cannot provide services, it can submit a written statement to the court saying so. That statement doesn’t make you unsuitable for diversion; it just means that particular program cannot take you.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
Access varies dramatically by county. Some have robust public mental health infrastructure and dedicated diversion programs. Others have long waitlists and limited capacity. The ability to pay for private treatment can decide whether diversion is a realistic option in practice.
How Long Diversion Lasts
Diversion is not open-ended. The maximum period is two years for felony charges and one year for misdemeanors. During that time, the treatment provider sends regular progress reports to the court, the defense attorney, and the prosecutor. The court retains jurisdiction throughout and can modify the treatment plan if circumstances change.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
What You Get for Completing the Program
Perform satisfactorily and the payoff is substantial. The court dismisses the criminal charges, and the arrest is legally deemed never to have occurred. The court orders the arrest record restricted under Penal Code Section 1001.9. On most applications that ask about prior arrests or diversions, you can truthfully answer no.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
There is one significant exception. If you apply for a job as a peace officer, the arrest can still be disclosed by the Department of Justice, and you still have to disclose it on the application. Law enforcement agencies also retain access to sealed records. For essentially every other profession, the arrest is treated as if it never happened.
Professional licensing in California is even more explicit. Under AB 2138, licensing boards cannot deny a license based on an arrest that did not result in a conviction. Successful diversion ends in dismissal rather than conviction, so the arrest generally cannot be used against you in a licensing decision.2California Board of Behavioral Sciences. Criminal Conviction FAQ – AB 2138
What Happens If Diversion Fails
Diversion is not a free pass. If things go wrong, the court holds a hearing to decide whether to reinstate criminal proceedings, modify the treatment plan, or initiate conservatorship proceedings. Four situations can trigger that hearing:
- You are charged with a misdemeanor committed during diversion that reflects a propensity for violence.
- You are charged with any felony committed during diversion.
- You engage in criminal conduct that makes you unsuitable for continued diversion.
- A qualified mental health expert concludes you are performing unsatisfactorily in the program or are gravely disabled.
If the court reinstates proceedings, the case picks up where it left off. Prosecution resumes, and you face the original charges. Losing diversion means losing the path to dismissal.1California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
Retroactive Application to Pending Cases
In 2020, the California Supreme Court held in People v. Frahs that the mental health diversion statute applies retroactively to all cases that were not yet final on appeal when the law took effect.3Justia Law. People v. Frahs (2020) – Supreme Court of California
Defendants convicted before the law passed but with appeals still pending could ask for a remand to the trial court for a diversion hearing. If your case is already final and all appeals are exhausted, the Frahs holding does not reach you.