Mental Health Diversion in California: Penal Code 1001.36 Explained
When a mental health condition played a part in a criminal charge, California law gives the judge a way to treat the condition instead of prosecuting the case. It is called mental health diversion, and it is found in Penal Code section 1001.36. The case is put on hold while the person goes through treatment, and if the treatment goes well, the charges are dismissed. It is available for most felonies as well as misdemeanors, and it does not require a guilty plea.
For a family watching someone they love get pulled into the criminal system because of an illness, this is often the first thing worth asking about.
Who is eligible
The statute sets two eligibility requirements.
A diagnosed mental disorder. The person must have a disorder listed in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (the DSM). The statute names bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder as examples, but the list is open-ended; depression, anxiety disorders, ADHD, and substance use disorders all appear in the DSM. Two diagnoses are excluded: antisocial personality disorder and pedophilia. The defense supplies the evidence, and it must include a diagnosis or treatment within the last five years by a psychiatrist, psychologist, or other qualified mental health professional, who may rely on an examination, medical records, arrest reports, or other relevant evidence.
A connection to the charge. The disorder must have been a significant factor in the charged offense. Since a 2022 amendment (Senate Bill 1223, effective January 1, 2023), the law presumes that connection. Once a diagnosis is shown, the court must find the disorder was a significant factor unless there is clear and convincing evidence that it was not a motivating, causal, or contributing factor. That is a high bar for the prosecution, and it means the real dispute is usually somewhere else.
Whether diversion is “suitable”
An eligible person must also be found suitable. Under the current statute, that takes four things:
- A qualified mental health professional gives the opinion that the symptoms behind the offense would respond to treatment;
- The person consents to diversion and waives the right to a speedy trial;
- The person agrees to comply with treatment; and
- The person would not pose an unreasonable risk of danger to public safety if treated in the community.
A person found mentally incompetent to stand trial can be diverted without giving that consent or waiver, under separate provisions.
The danger question is where most contested motions are decided, and it is narrower than it sounds. “Unreasonable risk of danger” is borrowed from another statute and means an unreasonable risk that the person will commit one of a short list of the most serious violent felonies, often called “super strikes” — homicide, sexually violent offenses, certain sex offenses against young children, and a few others. A risk that the person might reoffend in some lesser way is not the test.
Even so, the judge has real room to say no. In a case published this fall, People v. Henn (Sept. 22, 2026, B348158) ___ Cal.App.5th ___, the trial court found the defendant eligible but denied diversion as too dangerous. The charge was felony domestic violence, and the evidence was that he had choked his girlfriend with a cord while she was driving on the freeway. The Court of Appeal upheld the denial. It said a judge may rely primarily on the circumstances of the charged offense, along with any history of similar conduct, and it gave less weight to the defense evaluator’s favorable opinion because she had not reviewed his criminal history. The practical lesson: the evaluator should see the whole record, including the unflattering parts, so the opinion actually answers what the judge will be asking.
And even when every requirement is met, granting diversion remains within the judge’s discretion.
Charges that cannot be diverted
Unlike the misdemeanor-only judicial diversion statute, section 1001.36 reaches most felonies. The excluded charges are murder and voluntary manslaughter; any offense that would require sex offender registration on conviction (except indecent exposure under section 314); rape; a lewd or lascivious act on a child under 14; assault with intent to commit rape, sodomy, or oral copulation; rape or sexual penetration in concert; continuous sexual abuse of a child; and certain offenses involving weapons of mass destruction. Everything else can at least be considered.
How long it lasts and what it involves
Diversion can last no longer than two years for a felony and one year for a misdemeanor. The judge must be satisfied that the treatment program, inpatient or outpatient, meets the person’s needs. Treatment can be paid for privately or provided through public resources such as the county behavioral health system or a collaborative court, if that program agrees to take the person. The provider sends regular progress reports to the court, the defense, and the prosecutor.
The court can order restitution to a victim, but inability to pay because of poverty or the disorder itself is not a reason to deny diversion or to find that it failed. The prosecution can also ask for an order barring firearm possession during diversion, but it must prove the need by clear and convincing evidence.
If the person is charged with a new felony or a new violent misdemeanor, or is not doing well in the program, the court holds a hearing. Ending diversion and restarting the prosecution is one option; modifying the treatment is another.
What happens when it is completed
If the person has performed satisfactorily, the court dismisses the charges at the end of the diversion period. Satisfactory does not mean perfect: the court may find it where the person substantially complied, avoided significant new violations of law unrelated to the mental health condition, and has a plan for long-term care.
On dismissal, the arrest is deemed never to have occurred, and the court orders access to the arrest record restricted. The person may generally answer that they were not arrested or diverted for the offense. Records from the diversion cannot be used, without the person’s consent, in a way that could lead to denial of employment, a benefit, or a license. There are two exceptions the person must be told about: the arrest must still be disclosed on an application to become a peace officer, and criminal justice agencies can still see and use the sealed records.
When to raise it: before trial or plea
Timing is the trap. The California Supreme Court held in People v. Braden (2023) 14 Cal.5th 791 that a request for mental health diversion must be made before jeopardy attaches at trial or before a guilty or no contest plea is entered, whichever comes first. Once a plea is taken, this option is generally gone. (An earlier decision, People v. Frahs (2020) 9 Cal.5th 618, applied the statute to cases still on appeal when it first took effect in 2018; that transition question is now largely past.)
The judge may first ask for an informal, preliminary showing that the requirements can be met, which can be made through offers of proof, reports, and argument. In practice, the strongest requests arrive with a current evaluation, treatment records, and a specific program that has already agreed to accept the person.
Changes taking effect January 1, 2027
The Legislature amended section 1001.36 again this year (Assembly Bill 46, Stats. 2026, ch. 18), and the changes take effect January 1, 2027. The presumption that the disorder was a significant factor will apply only if the person was diagnosed or rediagnosed within five years of the current offense. The professional’s opinion must address whether the proposed diversion plan is clinically appropriate for the symptoms behind the charge. The danger standard changes from the “super strike” test to whether the person would pose a substantial and undue risk to the physical safety of another person, and the court must consider victims’ constitutional rights. A judge who denies diversion will have to state the reasons on the record.
A second 2026 bill (Assembly Bill 2273, Stats. 2026, ch. 298), also effective January 1, 2027, adds a duty for prosecutors: when the facts alleged, or shown at the preliminary hearing, would support a charge that makes a person ineligible for diversion, and that charge was not filed, the prosecution must state on the record why it is not being sought and whether it conferred with the victim.
How the new rules apply to cases already pending on January 1 has not been settled. For someone whose case is open now, it is worth asking early whether a motion heard before that date would be decided differently than one heard after.
Mental health diversion is one of several diversion programs. For misdemeanors, compare Misdemeanor Diversion in California: How Penal Code 1001.95 Can End a Case Without a Conviction. If a case has already ended in a conviction, see Clearing a Criminal Record in California: Expungement Under Penal Code 1203.4. Non-citizens should have the immigration consequences of any resolution reviewed before it is final.
Facing a charge in Santa Clara County or elsewhere in the Bay Area and wondering whether mental health diversion fits? Ask a legal question.