California’s Mental Health Diversion Program

By Jeffery Rubenstein

What is Mental Health Diversion?

Under Penal Code Section 1001.36, California’s “Mental Health Diversion” pre-trial program allows individuals who are facing certain misdemeanor or felony charges to obtain mental health treatment if they suffer from a qualifying mental health disorder. This “pretrial diversion program” allows an eligible and suitable defendant to postpone further action in their case at the pretrial phase to participate in a treatment program. Mental health diversion can be requested at any point in a criminal case prior to a defendant being sentenced.

What are the benefits of Mental Health Pretrial Diversion?

Upon successful completion of a pretrial diversion treatment program, the charges against the defendant will be dismissed. The record of the arrest will then be sealed.

How does someone qualify for Mental Health Diversion under California PC 1001.36?

Both misdemeanor and felony defendants can be considered for mental health diversion under PC 1001.36 so long as ALL of the following conditions have been met:

The defendant has been diagnosed by a qualified mental health expert with a mental disorder pursuant to the most recent edition of Diagnostic and Statistical Manual (DSM) of Mental Disorders other than an antisocial personality disorder, borderline personality disorder, or pedophilia, and the diagnosis or treatment occurred in the last five years;

The court finds clear and convincing evidence that the mental disorder was a motivating factor, causal factor, or contributing factor to the alleged offense;

In the opinion of a qualified mental health expert, the defendant would respond to mental health treatment;

The defendant consents to diversion and waives his or her right to a speedy trial for up to 24 months;

The defendant agrees to comply with treatment as a condition of diversion; and

The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety.

What are common mental health disorders which qualify under Penal Code Section 1001.36?

Bipolar Disorder

Depressive Disorder

Anxiety Disorder

Post-Traumatic Stress Disorder (PTSD)


Defendants with the following conditions are NOT eligible for mental health diversion under PC 1001.36:

Antisocial personality disorder,

Borderline personality disorder, and/or


What Criminal Offenses Are Ineligible for Mental Health Diversion?

If the defendant is accused of certain severe criminal offenses, they are ineligible for Mental Health Diversion, regardless of the defendant’s mental health.

These criminal offenses include:

Assault with intent to commit rape, sodomy, or oral copulation,

Commission of rape or sexual penetration in concert with another person,

Continuous sexual abuse of a child,

Lewd or lascivious act on a child under 14 years of age,

Murder or voluntary manslaughter, and


What Should a Defendant Expect During Mental Health Diversion treatment?

Mental Health Diversion may be ordered by the Court for up to 24 months and may consist of any or all of the following:

Inpatient treatment,

Intensive outpatient treatment,

Medication Management sessions with a psychiatrist or primary treating physician,

Therapy/counseling sessions, and

Substance abuse (AA/NA) meetings.

The defendant’s mental health provider must submit regular reports to the court throughout the defendant’s treatment to show the defendant is regularly attending and participating in the programs ordered by the Court.

Why Would Mental Health Diversion be Terminated by the Court?

There are several reasons why Mental Health Diversion can be terminated by the Court, including:

A defendant being charged with another misdemeanor offense which shows a propensity for violence,

A defendant being charged with a new felony offense,

A defendant commits any criminal conduct which shows they are unsuitable for diversion; and/or

A qualified mental health expert advises the Court that:

The defendant’s performance in the assigned treatment program is not satisfactory, and/or

The defendant is gravely disabled.

What Happens once a Defendant Completes Mental Health Diversion?

Once a defendant successfully completes the mental health treatment program AND the period of mental health diversion ends, the Court will dismiss the charge(s).

A defendant is considered to have successfully completed the program when they:

Have substantially complied with the requirements of diversion,

Have avoided significant new violations of law unrelated to the defendant’s mental health condition, and

Have a plan in place for long-term mental health care.

What Happens if a Defendant Does Not Successfully Complete Mental Health Diversion?

If the defendant does not successfully complete Mental Health Diversion, the Court will reinstate the criminal proceedings against the defendant.

Does Mental Health Diversion “Seal” a Person’s Criminal Record?

Once a person successfully completes Mental Health Diversion and the case is dismissed, the arrest will be sealed. For most purposes, it will be as if the arrest and prosecution had never happened. However, sealed arrest records and records of successful participation in diversion may be used as follows:

The defendant must disclose the arrest if he/she applies to be a peace officer (such as a police officer). The arrest will be disclosed by the California Department of Justice in connection with such an application.

Criminal justice agencies may access and use sealed arrest records in the ordinary course of their duties.

A court may use the records against the defendant in determining whether to grant mental health diversion in any future criminal case.

The records provided to the Court may be used as necessary to provide continued care and treatment to the defendant.

For further information regarding California’s Mental Health Diversion program, please contact the Law Office of Jeffery K. Rubenstein at (310) 477-2100.

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