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California Mental Health Diversion Law

California Penal Code § 1001.36: Mental Health Diversion Guide

California Penal Code §1001.36 creates a pretrial Mental Health Diversion framework for certain misdemeanor and felony cases. The statute separates legal eligibility from suitability, contains charge-based exclusions, and requires a treatment plan that addresses the person's specialized mental health needs. This guide explains the current statutory framework in plain language.

Statutory GuideCalifornia

Quick answer

What Does California Penal Code §1001.36 Do?

  1. PC §1001.36 permits a California court, in its discretion, to grant pretrial Mental Health Diversion in certain misdemeanor and felony cases.
  2. The statute separates two major questions: eligibility and suitability.
  3. A qualifying mental disorder must be supported by appropriate clinical evidence from a qualified mental health expert.
  4. The statute contains specific current charged offenses for which diversion is unavailable.
  5. The treatment program must address the person's specialized mental health treatment needs.
  6. The maximum diversion period is different for misdemeanors and felonies.

Legal note

This is general educational information, not legal advice. Statutes, case law and local procedures can change.

Looking for a broader overview?Read: What Is the Mental Health Diversion Program in California?

Visual guide

PC §1001.36: Eligibility vs. Suitability

Diagram explaining the difference between eligibility and suitability under California Penal Code 1001.36 Mental Health Diversion.

Eligibility

The statute asks whether the threshold legal requirements are met.

  • Qualifying mental disorder
  • Clinical evidence from a qualified mental health expert
  • Mental disorder was a significant factor in the charged offense
  • Current charge is not statutorily excluded

Eligible does notautomatically meandiversion willbe granted

Suitability

If eligible, the court considers whether diversion is appropriate.

  • Symptoms would respond to treatment
  • Consent / applicable legal waiver requirements
  • Agreement to comply with treatment where required
  • No unreasonable risk of danger to public safety under the statutory standard

The court applies the statutory framework. Defense counsel handles the legal analysis. Qualified clinicians handle clinical opinions.

PC §1001.36 separates threshold eligibility from the court's suitability analysis.Source: California Penal Code §1001.36(b)–(d).

Statutory eligibility

What Are the Eligibility Requirements Under PC §1001.36?

Current law separates eligibility into two primary statutory criteria: a qualifying mental disorder, and a connection between that disorder and the charged offense. Both are legal questions that the court decides under Penal Code §1001.36.

A Qualifying Mental Disorder

The current statute requires a diagnosis of a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). It gives examples, including bipolar disorder, schizophrenia, schizoaffective disorder and post-traumatic stress disorder. That list of examples is not exhaustive.

The current statutory text identifies antisocial personality disorder and pedophilia as excluded diagnoses in this provision. Statutory language can change, so defense counsel should review the current text before relying on any diagnosis list.

Clinical evidence. The defense must provide evidence of the mental disorder. Current statutory language includes evidence of a diagnosis, or of treatment for a diagnosed mental disorder, within the previous five years by a qualified mental health expert. In reaching an opinion, a qualified expert may rely on an examination, medical records, arrest reports or other relevant evidence.

The Mental Disorder and the Charged Offense

The mental disorder must have been a significant factor in the commission of the charged offense. Current law contains a statutory presumption: a rule that tells the court what to find unless certain evidence is presented.

When the defendant has a qualifying diagnosis, the court is directed to find that the disorder was a significant factor, unless there is clear and convincing evidence that it was not a motivating, causal or contributing factor in the offense.

Legal note: significant-factor presumption

This statutory presumption is a legal rule. It does not mean that every person with a diagnosis is eligible for diversion.

After eligibility

What Does the Court Consider for Suitability?

Meeting the eligibility criteria does not end the analysis. Under the current statute, the court must also find that the person is suitable for diversion, which involves several additional requirements.

  1. 01

    Treatment response

    A qualified mental health expert must opine that the symptoms related to the criminal behavior would respond to mental health treatment.

  2. 02

    Consent / legal waiver

    The statute contains consent and speedy-trial waiver requirements, with specific provisions for certain defendants found mentally incompetent.

  3. 03

    Treatment participation

    The statute addresses agreement to comply with treatment, again with specific provisions in certain competency situations.

  4. 04

    Public safety

    The court considers whether treatment in the community would create an unreasonable risk of danger to public safety under the statutory definition.

Public safety note

In assessing public safety, the court may consider the treatment plan, criminal history, history of violence, the current charge, the opinions of counsel and qualified experts, and other factors the court deems appropriate. No single factor decides the question.

Statutory exclusions

Which Current Charges Are Excluded From PC §1001.36?

PC §1001.36(d) lists current charged offenses for which Mental Health Diversion is not available:

  1. Murder or voluntary manslaughter
  2. An offense requiring registration under Penal Code §290 upon conviction, except a violation of Penal Code §314
  3. Rape
  4. Lewd or lascivious act on a child under 14
  5. Assault with intent to commit rape, sodomy or oral copulation under Penal Code §220
  6. Rape or sexual penetration in concert under Penal Code §264.1
  7. Continuous sexual abuse of a child under Penal Code §288.5
  8. A violation of Penal Code §11418(b) or (c)

Other law may also matter

The absence of a charge from this list does not automatically mean Mental Health Diversion is legally available.

Legal note

What About DUI?

DUI questions come up often. Whether diversion is available can be affected by other California statutes and appellate decisions. Defense counsel should evaluate Vehicle Code §23640 and current California appellate authority when DUI charges are involved.

Clinical plan

What Does PC §1001.36 Say About the Treatment Program?

The court must be satisfied that the recommended inpatient or outpatient mental health treatment program will meet the defendant's specialized mental health treatment needs. In deciding, the court may consider the request of the defense, the request of the prosecution, the needs of the defendant and the interests of the community.

Treatment may draw on public or private resources, county mental health services, collaborative courts or other appropriate treatment resources, subject to the statute's requirements and what is available locally. No provider's program is approved automatically.

What Might Treatment Include?

Depending on actual clinical needs, qualified providers may recommend:

  • individual therapy
  • psychiatric care
  • medication management
  • trauma-focused treatment
  • group therapy
  • co-occurring substance-use treatment (Behavioral Health & Substance Abuse Treatment)
  • case management
  • other clinically appropriate services

Not every person needs every service. The plan should follow the person's needs and the providers' recommendations.

Time limits

How Long Can PC §1001.36 Diversion Last?

Misdemeanor diversion

1 year

No longer than one year

Felony diversion

2 years

No longer than two years

These are statutory maximum diversion periods, not promises about how long any particular case will take.

During diversion

What Does the Statute Say About Progress Reporting?

PC §1001.36 requires the provider of the mental health treatment program to give regular reports on the defendant's progress to the court, the defense and the prosecution. The statute does not set one universal reporting schedule.

Privacy and authorization

Clinical and treatment information can involve sensitive records. Information sharing should follow applicable law, authorization requirements and the legal process.

Financial terms

Can Restitution Be Addressed During Diversion?

Restitution means payment to a victim for losses caused by an offense. On request, the statute permits the court to determine whether victim restitution is owed and to order payment during diversion. The statute also addresses situations where a person cannot pay because of indigence or a mental disorder.

Statute map

How PC §1001.36 Moves From Review to Completion

Diagram explaining the California Penal Code 1001.36 Mental Health Diversion process from eligibility and suitability through treatment and completion.

  1. Legal eligibility

    Diagnosis + statutory significant-factor analysis

  2. Suitability

    Treatment response

    Consent / waiver

    Treatment compliance

    Public-safety analysis

  3. Court decision

    The court determines whether diversion is granted

  4. Treatment program

    Treatment framework for attorney and court review, based on specialized needs

  5. Progress during diversion

    Treatment provider reports progress under the statutory framework

  6. Completion or further court action

    The court determines what happens under the statute

ETS may coordinate support services. It does not make the statutory or judicial decisions.

A general map of the PC §1001.36 framework. Individual cases and local procedures can differ.Source: California Penal Code §1001.36.

If problems arise

When Can the Court Reconsider or Reinstate Criminal Proceedings?

PC §1001.36 contains procedures that allow the court to hold a hearing in specified circumstances. These include certain new criminal charges, criminal conduct that bears on suitability, unsatisfactory performance in treatment, or specified grave-disability circumstances based on expert opinion.

After a hearing, the court decides what happens under the statute. A single missed appointment or treatment setback does not automatically reinstate the case.

End of diversion

What Does PC §1001.36 Say About Successful Completion?

If the defendant has performed satisfactorily in diversion, the statute provides for dismissal of the criminal charges that were the subject of the diversion proceedings. The court decides whether performance was satisfactory.

At a high level, the statute's satisfactory-performance language looks at:

  • substantial compliance with the requirements of diversion
  • avoiding significant new violations of law unrelated to the mental health condition
  • having a plan in place for long-term mental health care

"Substantial compliance" means meeting the requirements in a meaningful, overall way; it is a judgment the court makes.

After successful completion

What Does the Statute Say About Arrest and Diversion Records?

After successful completion and dismissal, PC §1001.36 contains provisions addressing:

  • the arrest being deemed never to have occurred for specified purposes
  • restricted access to the arrest record
  • how a person may respond to questions about a prior arrest or diversion, subject to statutory exceptions
  • how records relating to diversion may be used

Important caution

The statute contains important exceptions.

These include provisions about applications for employment as a peace officer and access by criminal justice agencies. Professional licensing, immigration, background checks, special employment and other disclosure obligations may involve additional law. Defense counsel should advise on the person's specific situation.

Sensitive information

How Does the Statute Treat Mental Health and Progress Records?

PC §1001.36 contains protections for certain mental health, progress and diversion records. It also allows relevant entities to access medical and psychological records when needed for treatment and monitoring, subject to applicable law. These protections are specific, not absolute, and counsel can explain how they apply.

Additional statutory provision

Can Firearm Restrictions Be Ordered During Mental Health Diversion?

Current PC §1001.36 includes a procedure through which the prosecution may ask the court to order restrictions on firearm possession during diversion. The court may do so based on specified findings, using a clear-and-convincing-evidence standard.

Legal counsel should advise on the effect of any firearm order and on restoration of rights.

The support side

Where Executive Treatment Solutions Fits

ETS does not decide PC §1001.36 eligibility, legal suitability or court outcomes and does not replace defense counsel or licensed clinical providers. When support services are relevant, ETS can help coordinate the practical treatment side.

Clinical decisions belong to qualified providers. Legal decisions belong to the court and counsel.

Four different roles

Who Does What

Court

Applies PC §1001.36 and makes judicial determinations.

Defense counsel

Handles eligibility, suitability arguments, statutory interpretation, advocacy and how information is used.

Qualified clinical providers

Handle diagnosis, clinical assessment, treatment recommendations and care.

ETS

Coordinates relevant support services, providers, schedules, case management and authorized information.

Looking for a broader overview?

Our broad guide explains how the legal and clinical sides of Mental Health Diversion fit together, without the statutory detail. Read: What Is the Mental Health Diversion Program in California?

Questions

Frequently Asked Questions About California Penal Code §1001.36

It is the California statute that creates pretrial Mental Health Diversion. It lets a court, in its discretion, pause certain criminal cases while a person takes part in an approved mental health treatment program.

Sources & Legal References

Executive Treatment Solutions Editorial Team

This statutory guide is written for people and families trying to understand California Penal Code §1001.36. It is not legal or medical advice.

Confidential consultation

Understand the Statute. Then Organize the Treatment Side.

If PC §1001.36 Mental Health Diversion is being evaluated in your case, ETS can help coordinate relevant assessments, qualified treatment providers, case management and authorized progress information while defense counsel handles the legal strategy.

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ETS does not provide legal representation, determine PC §1001.36 eligibility or replace qualified clinical providers.

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