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.
Quick answer
What Does California Penal Code §1001.36 Do?
- PC §1001.36 permits a California court, in its discretion, to grant pretrial Mental Health Diversion in certain misdemeanor and felony cases.
- The statute separates two major questions: eligibility and suitability.
- A qualifying mental disorder must be supported by appropriate clinical evidence from a qualified mental health expert.
- The statute contains specific current charged offenses for which diversion is unavailable.
- The treatment program must address the person's specialized mental health treatment needs.
- The maximum diversion period is different for misdemeanors and felonies.
Legal note
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.
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.
01
Treatment response
A qualified mental health expert must opine that the symptoms related to the criminal behavior would respond to mental health treatment.
02
Consent / legal waiver
The statute contains consent and speedy-trial waiver requirements, with specific provisions for certain defendants found mentally incompetent.
03
Treatment participation
The statute addresses agreement to comply with treatment, again with specific provisions in certain competency situations.
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:
- Murder or voluntary manslaughter
- An offense requiring registration under Penal Code §290 upon conviction, except a violation of Penal Code §314
- Rape
- Lewd or lascivious act on a child under 14
- Assault with intent to commit rape, sodomy or oral copulation under Penal Code §220
- Rape or sexual penetration in concert under Penal Code §264.1
- Continuous sexual abuse of a child under Penal Code §288.5
- 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.
Legal eligibility
Diagnosis + statutory significant-factor analysis
Suitability
Treatment response
Consent / waiver
Treatment compliance
Public-safety analysis
Court decision
The court determines whether diversion is granted
Treatment program
Treatment framework for attorney and court review, based on specialized needs
Progress during diversion
Treatment provider reports progress under the statutory framework
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.
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.
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
Sources & Legal References
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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