Penal Code 1001.36 is the California statute that provides for mental health diversion. This program allows some people with mental health issues to receive treatment in lieu of prosecution and jail when they are charged with a crime.
If the defendant successfully completes treatment, the criminal charges will be dismissed. The record of the arrest will then be sealed for most purposes and it will be as if the arrest had never happened.1
Penal Code 1001.36 resulted from the passage of California Senate Bill 215 (SB 215). It became effective on June 27, 2018, and the statute was amended in 2022.
In this article, our California criminal defense lawyers will discuss:
- 1. What is mental health diversion?
- 2. How does someone qualify under California PC 1001.36?
- 2.1. The defendant was diagnosed with a mental health disorder
- 2.2. The disorder played a significant role in the alleged crime
- 2.3. The defendant would respond to treatment
- 2.4. The defendant waives the right to a speedy trial
- 2.5. The defendant agrees to treatment
- 2.6. The risk of danger to public safety is small
- 3. How long does PC 1001.36 treatment last?
- 4. Who pays for mental health diversion?
- 5. How is treatment progress measured?
- 6. What happens when treatment is complete?
- 7. Does mental health diversion “seal” a criminal record?
- 8. Can a record of the arrest be used in immigration court?
California’s “Mental Health Diversion” program allows some criminal defendants to get mental health treatment when they are accused of a crime. Set forth in Penal Code 1001.36 PC, it is a form of “pretrial diversion” in California.
A “pretrial diversion program” allows a willing defendant to postpone further action in his/her case in order to participate in a treatment program.2 It can be requested at any point in a criminal case before a defendant is sentenced.
The benefits of pretrial diversion in California
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 and it will be as if the arrest had never happened. (See details in Section 7, below).
Other types of pretrial diversion in California include:
- California drug diversion,3
- Military diversion for veterans with mental health issues,4
- California’s “bad check” diversion program, 5 and
- In some counties, a general misdemeanor diversion program.6
Both misdemeanor and felony defendants can be considered for mental health diversion under PC 1001.36. But the court can only approve a program of treatment if ALL of the following conditions have been met:
- The defendant has been diagnosed with a mental disorder 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 no 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;
- 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.7
Let’s take a closer look at each of these conditions.
To qualify for PC 1001.36 diversion, the defendant must have a disorder listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Most conditions qualify, including:
- Bipolar disorder,
- Schizoaffective disorder, and
- Post-traumatic stress disorder (“PTSD”).8
For more discussion, see our article on PTSD as a defense to criminal charges in California.
However, defendants with the following conditions are NOT eligible for mental health diversion under PC 1001.36:
- Antisocial personality disorder,
- Borderline personality disorder, or
How does the defendant prove a mental disorder?
The defense must present evidence of a diagnosis by a qualified mental health expert. The expert may rely on any relevant evidence, including:
- An examination of the defendant,
- The defendant’s medical records, and
- Arrest reports.
The diagnosis or treatment must have occurred in the last five years.10
The judge must find that a defendant’s mental disorder played a significant role in the charged crime unless there is clear and convincing evidence otherwise.12
For a defendant to get diversion, a qualified mental health expert must believe treatment would be effective. Specifically, he/she must opine that the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.13
Under the Sixth Amendment to the United States Constitution, criminal defendants have the right to a speedy trial.14 Diversion makes it impossible to comply with this requirement. So a defendant who wants diversion must waive his/her right to a speedy trial.15
An exception is a defendant who cannot give a knowing and intelligent waiver due to his or her mental state. If such a defendant is a good candidate for diversion instead of commitment, the court may order diversion without a waiver.16
The defendant must agree to comply with treatment as a condition of diversion.17
Finally, the judge must be satisfied that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.18
The judge may consider any relevant factors, including:
- The opinion of the district attorney,
- The opinion of the defendant’s lawyer,
- The opinion of a qualified mental health expert,
- The defendant’s criminal history and history of violence (if any), and
- The severity of the charged offense. 19
Mental health diversion under Penal Code 1001.36 lasts a maximum of two (2) years. For misdemeanors, the maximum is one (1) year.20 It can consist of inpatient or outpatient treatment.21
Before approving a proposed treatment program, the court will consider:
- The request of the defense,
- The request of the prosecution,
- The needs of the defendant, and
- The interests of the community.22
Payment for mental health treatment under PC 1001.36 can come from private or public funds. 23 If the defendant cannot afford private treatment, the court may refer him/her to:
- A county mental health agency, or
- Any existing collaborative court.24
But the defendant will only be able to avail him-/herself of a treatment program if:
- The designated entity has agreed to accept responsibility for the defendant’s treatment, and
- There are available resources for which the defendant is eligible.25
The provider of a diversion treatment program will provide regular progress reports to the court. Such reports will also be sent to the defense and the prosecutor.26
If certain triggering events occur (as discussed below), the court will hold a hearing to determine whether:
- The treatment program should be modified,
- Criminal proceedings against the defendant should be reinstated, or
- The defendant should be referred to a county investigator for possible conservatorship proceedings.27
Before holding the hearing, the court will notify the defendant, defense counsel, and the prosecution. 28
Events that will trigger a hearing
The circumstances that will trigger such a hearing are:
- The defendant is charged with a new misdemeanor that reflects a propensity for violence;
- The defendant is charged with a new felony;
- The defendant engages in criminal conduct that makes him/her unsuitable for diversion; or
- A qualified mental health expert advises the court that:
- The defendant’s performance in the assigned treatment program is not satisfactory, or
- The defendant is gravely disabled.29
If the defendant successfully completes the treatment program, at the end of the diversion period the court will dismiss the charge(s).30
A defendant is considered to have successfully completed a program when he or she:
- Has substantially complied with the requirements of diversion,
- Has avoided significant new violations of law unrelated to the defendant’s mental health condition, and
- Has a plan in place for long-term mental health care.31
If diversion was not successfully completed, the court will reinstate the criminal proceedings against the defendant.
The defendant will still be able to introduce any available criminal defenses to the charges.
Upon a defendant’s successful completion of mental health diversion, the charges against the defendant will be dismissed. The arrest will be sealed. 32
For most purposes, it will be as if the arrest and prosecution had never happened. Except as set forth below, they cannot be used to deny the defendant any
- license, or
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 California Department of Justice will also disclose the arrest in connection with such an application.34
- Criminal justice agencies may access and use sealed arrest records in the ordinary course of their duties. 35
- A court may use the records in determining whether to grant mental health diversion in any future criminal case against the defendant .36
- The records may be used as necessary to provide continued care and treatment to the defendant.37
Sealing a record in California does not remove it from consideration by an immigration court. But there should be no immigration consequences from mental health diversion as long as:
- The defendant does not plead guilty to a removable (deportable) offense or an “inadmissible” crime, and
- The defendant does not admit to any facts that are essential elements of such an offense.
Immigrants should consult with an experienced California criminal defense attorney before agreeing to participate in a program of diversion. And they should never plead guilty to a crime without understanding the immigration consequences.
For additional help…
If you or a loved one has a mental disorder and was charged with a crime, we invite you to contact us for a free consultation.
Call us to discuss your case in confidence with one of our experienced California criminal lawyers. We understand the best defenses for people with mental illnesses who are charged with a crime in California.
We will treat you and your loved one with respect and fight aggressively to protect his or her rights.
- California Penal Code 1001.36 PC: (a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).
(b) A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:
(1) The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.
(2) The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
(c) For any defendant who satisfies the eligibility requirements in subdivision (b), the court must consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met:
(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.
(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendant’s mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial.
(3) The defendant agrees to comply with treatment as a condition of diversion, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendant’s mental incompetence, cannot agree to comply with treatment.
(4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(d) A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1) Murder or voluntary manslaughter.
(2) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(4) Lewd or lascivious act on a child under 14 years of age.
(5) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(6) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(7) Continuous sexual abuse of a child, in violation of Section 288.5.
(8) A violation of subdivision (b) or (c) of Section 11418.
(e) At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.
(f) As used in this chapter, the following terms have the following meanings:
(1) Pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
(i) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
(ii) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
(iii) If the court refers the defendant to a county mental health agency pursuant to this section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.
(B) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.
(C) The period during which criminal proceedings against the defendant may be diverted is limited as follows:
(i) If the defendant is charged with a felony, the period shall be no longer than two years.
(ii) If the defendant is charged with a misdemeanor, the period shall be no longer than one year.
(D) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(2) “Qualified mental health expert” includes, but is not limited to, a psychiatrist, psychologist, a person described in Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert.
(g) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:
(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3) The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A) The defendant is performing unsatisfactorily in the assigned program.
(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
(h) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).
(i) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(j) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:
(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(k) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(l) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.
See SB 1223 (2022).
- Penal Code 1000 PC.
- Penal Code 1001.80 PC.
- California Penal Code 1001.60-1001.67 PC.
- Penal Code 1001.50 – 1001.55 PC.
- Penal Code 1001.36(b), endnote 1.
- Penal Code 1001.36(b)(1), endnote 1.
- Penal Code 1001.36(b)(2), endnote 1.
- Penal Code 1001.36(b)(3), endnote 1.
- United States Constitution, Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
- Penal Code 1001.36(b)(4), endnote 1.
- Penal Code 1001.36(b)(5), endnote 1.
- Penal Code 1001.36(b)(6), endnote 1. See also Penal Code 1170.18 (c): “As used throughout this code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”See also California’s “Three Strikes” law, Penal Code 667 PC.
- Penal Code 1001.36(c)(3), endnote 1.
- Penal Code 1001.36(c)(1)(B), endnote 1.
- Penal Code 1001.36(c)(2), endnote 1.
- Penal Code 1001.36(d), endnote 1.
- Penal Code 1001.36(e), endnote 1.
- Penal Code 1001.36(f), endnote 1.
- Penal Code 1001.36(g)(1), endnote 1.
- Penal Code 1001.36(g)(2), endnote 1. See also Penal Code 851.92.
- Penal Code 1001.36(h), endnote 1. See also California Constitution, Article 1, Section 28 on victims’ rights.
- Penal Code 1001.36(i), endnote 1.