California Penal Code 1001.36 – Mental Health Diversion in Criminal Cases
California Penal Code 1001.36 allows eligible defendants facing misdemeanor or felony criminal charges to receive mental health treatment instead of traditional criminal prosecution.
This pretrial diversion program gives qualifying defendants the opportunity to complete treatment and potentially have their charges dismissed.
Mental health diversion became law in California in 2018 and created a powerful alternative for defendants whose criminal conduct was substantially connected to a qualifying mental health disorder.
If you successfully complete the program, you may have criminal charges dismissed, avoid jail or prison, avoid a criminal conviction, protect employment opportunities, and, in some cases, preserve immigration options
This program is often used in cases where untreated mental illness contributed to criminal behavior.
The best way to achieve a positive result is to consult an experienced criminal defense attorney at Esfandi Law Group in California. You can schedule your free consultation by calling (310) 274-6529 or using the contact form here.
How Mental Health Diversion Works
Mental health diversion under California Penal Code 1001.36 follows a court-supervised process.
Criminal Charges Are Filed
The process begins after you are charged with a misdemeanor or felony offense.
Mental Health Evaluation
A licensed mental health expert may evaluate you.
This often includes:
- Psychological evaluations
- Psychiatric assessments
- Medical record reviews
- Prior treatment history reviews
Defense Files Diversion Request
Your attorney may petition the court for diversion.
Court Reviews Eligibility
The judge reviews:
- Medical records
- Police reports
- Criminal history
- Expert opinions
- Public safety concerns
Treatment Plan Is Created
Treatment may include:
- Inpatient treatment
- Outpatient treatment
- Therapy
- Medication management
- Substance abuse treatment
Court Monitoring
The court may require regular progress reports.
Successful Completion
Charges may be dismissed upon successful completion of treatment.
Who Qualifies for Mental Health Diversion?
Not every defendant qualifies.
You Must Have a Qualifying Mental Health Disorder
Common qualifying disorders may include:
- Bipolar disorder
- Schizophrenia
- PTSD
- Major depression
- Anxiety disorders
- Schizoaffective disorder
The Mental Illness Must Have Contributed to the Crime
The disorder must be a significant factor in the alleged offense.
Example:
A person experiencing untreated psychosis commits a low-level theft offense.
A Mental Health Professional Must Recommend Treatment
The court needs evidence that treatment will likely help.
You Must Agree to Treatment
Participation is voluntary.
You Must Waive Speedy Trial Rights
Defendants typically waive speedy trial rights during diversion.
You Cannot Pose an Unreasonable Risk to Public Safety
Public safety concerns often determine eligibility.
Mental Health Conditions That Usually Do Not Qualify
Certain diagnoses are excluded under California law.
Antisocial Personality Disorder
Generally excluded.
Borderline Personality Disorder
Often excluded when it is the only diagnosis.
Pedophilia
Specifically excluded.
Crimes That May Qualify for Mental Health Diversion
California Penal Code 1001.36 may apply to both misdemeanor and felony cases when a qualifying mental health disorder played a significant role in the alleged offense.
While eligibility depends on the facts of the case, public safety concerns, criminal history, and judicial discretion, many defendants are surprised to learn that relatively serious charges may still qualify.
Theft Crimes
Mental health diversion may apply in theft-related cases when mental illness contributed to impulsive behavior, psychotic episodes, or untreated addiction-related mental health conditions.
Common examples include:
Example:
A defendant experiencing untreated schizophrenia steals food during a mental health crisis.
Drug Crimes
Many drug-related offenses may qualify when substance abuse overlaps with mental health disorders such as depression, PTSD, or bipolar disorder.
Examples include:
- Drug possession
- Possession of paraphernalia
- Being under the influence of controlled substances
Vandalism Charges
Mental health episodes sometimes lead to destructive behavior.
Related law: California vandalism law.
Example: A person experiencing a manic episode damages property.
Assault Charges
Some non-serious assault cases may qualify when mental illness played a major role.
Examples include:
- Simple assault
- Simple battery
- Certain domestic disputes
Related laws: Assault, Battery.
Eligibility often depends on whether the court believes public safety can be protected.
Domestic Violence Cases
Some domestic violence cases may qualify, particularly when mental health issues significantly contributed to the incident.
Related laws: Corporal injury to a spouse or cohabitant. Penal Code 243(e)(1) Domestic battery.
These cases often face greater scrutiny due to concerns about victim safety.
Trespassing and Disorderly Conduct
Mental health crises frequently result in lower-level offenses involving confusion, homelessness, or erratic behavior.
Related laws: Penal Code 602 Trespassing. Penal Code 647 Disorderly conduct.
White Collar Crimes
In some situations, financial crimes may qualify if mental illness contributed to impulsive or irrational decision-making.
Examples include:
- Fraud
- Forgery
- Identity theft
Related law: Penal Code 470 Forgery.
Crimes That May Face Greater Difficulty Qualifying
Some cases face major eligibility challenges due to public safety concerns or statutory exclusions.
These may include:
- Serious violent felonies
- Certain sex crimes
- Murder charges
- Cases involving significant bodily injury
- Repeat violent offenses
Even when charges appear serious, an experienced defense attorney may still evaluate whether mental health diversion remains possible based on the facts of the case, medical history, and treatment options.
How Long Does Mental Health Diversion Last?
Under California Penal Code 1001.36, mental health diversion can last up to two years, but the exact length depends on your diagnosis, treatment needs, criminal charges, progress in treatment, and court supervision requirements.
Some defendants complete diversion in several months, while others require longer treatment plans involving ongoing therapy, medication management, and structured supervision.
Outpatient Treatment Programs
Many defendants participate in outpatient treatment while continuing to live at home.
Outpatient programs may include:
- Individual therapy
- Group counseling
- Psychiatric care
- Medication management
- Substance abuse treatment
- Case management services
Example: A defendant charged with misdemeanor theft completes nine months of outpatient counseling and psychiatric treatment.
Inpatient Treatment Programs
More serious mental health conditions may require residential or inpatient treatment.
This may involve:
- Psychiatric hospitalization
- Residential treatment facilities
- Crisis stabilization programs
- Intensive behavioral treatment
Example: A defendant experiencing severe schizophrenia enters a residential treatment center for several months before transitioning to outpatient care.
Combined Treatment Programs
Some defendants require both inpatient and outpatient care.
Example: A defendant begins treatment in a psychiatric facility and later transitions to weekly outpatient therapy and medication monitoring.
Court Progress Reviews During Diversion
Judges often require regular progress reports throughout the program.
The court may receive updates from:
- Psychiatrists
- Therapists
- Case managers
- Probation officers
- Treatment providers
These reviews help ensure you are following treatment recommendations and making progress.
What Happens After Successful Completion?
If you successfully complete all treatment requirements:
- Your criminal charges may be dismissed
- You may avoid jail or prison
- You may avoid a criminal conviction
- You may protect employment and housing opportunities
What Can Extend or Shorten Diversion?
Several factors may affect how long diversion lasts:
- Severity of your diagnosis
- Treatment compliance
- Missed appointments
- New arrests
- Medication compliance
- Court concerns about public safety
Judges have significant discretion when determining whether additional treatment time is necessary before dismissing charges.
What Happens If You Fail Mental Health Diversion?
The court may terminate diversion if:
- You stop treatment
- You are arrested again
- You violate court rules
- You fail progress requirements
If terminated:
- Criminal prosecution resumes
- Charges may proceed to trial
Mental Health Diversion Example
A defendant with diagnosed bipolar disorder experiences a severe mental health episode and is arrested for felony vandalism.
Defense attorneys present psychiatric evaluations showing untreated mental illness contributed to the offense.
The court grants diversion.
The defendant completes treatment.
Result: Charges are dismissed.
Related California Laws
Penal Code 1001.95 — Misdemeanor Diversion
Allows judicial diversion in certain misdemeanor cases.
Penal Code 1000 — Drug Diversion
Applies to qualifying drug offenses.
Proposition 36
Alternative treatment option for some drug cases.
Penal Code 1026 — Not Guilty by Reason of Insanity
Separate legal defense involving insanity claims.
Can Mental Health Diversion Apply Retroactively?
In some cases, yes. Certain defendants with prior convictions may pursue post-conviction relief depending on case timing and legal developments.
Frequently Asked Questions
Can felony charges qualify?
Yes. Some felony cases qualify.
Do I need a mental health diagnosis?
Usually, yes, supported by professional evidence.
Can charges be dismissed?
Yes, successful completion may result in dismissal.
Will I go to jail?
Diversion may help avoid incarceration.
Do I need a lawyer?
Yes. Legal representation is critical.
Why Legal Representation Matters
A post-traumatic stress disorder defense can be used in a criminal case in California, but only in specific ways.
Mental health diversion cases often require expert evaluations, treatment planning, court advocacy, and detailed legal arguments.
An experienced criminal defense attorney may help by:
- Securing expert evaluations
- Building treatment plans
- Arguing eligibility
- Protecting your future
If mental illness influenced your criminal case, Penal Code 1001.36 could offer a route to treatment rather than jail. Esfandi Law Group is available to assist. Book your free consultation now.