Mental Health Diversion for California Criminal Offenses
(Penal Code 1001.36 PC)


California Penal Code 1001.36 lets some people with mental disorders get treatment when they are charged with a crime. This program is known as “mental health diversion” in California.

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 passage of California Senate Bill 215 (SB 215). It became effective on June 27, 2018.

To help you better understand California's “mental health diversion” law, our California criminal defense lawyers discuss the following below:

1.What is “mental health diversion”?

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.

“Pretrial diversion” 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's current mental health diversion program resulted from passage of California Senate Bill 8 (“SB 8”). SB 8 / PC 1001.36 became effective on June 27, 2018.

2. 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. But the court can only approve a program of treatment if ALL of the following conditions have been met:

  1. The defendant suffers from a mental health condition other than antisocial personality disorder, borderline personality disorder, or pedophilia;
  2. The defendant's mental disorder played a significant role in the commission of the charged offense;
  3. In the opinion of a qualified mental health expert, the defendant would respond to mental health treatment;
  4. The defendant consents to diversion and waives his or her right to a speedy trial;
  5. The defendant agrees to comply with treatment as a condition of diversion; and
  6. 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.

2.1. The defendant suffers from a mental health condition

To qualify for PC 1001.36 diversion, the defendant must have a condition listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. Most conditions qualify, including:

However, defendants with the following conditions are NOT eligible for mental health diversion under PC 1001.36:

  • Antisocial personality disorder,
  • Borderline personality disorder, or
  • Pedophilia.9

How does the defendant prove a mental disorder?

The defense must present evidence of a recent 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.10
therapist listening to patient - california mental health legal experts
To qualify for mental health diversion” in California, a defendant will need a diagnosis from a qualified mental health expert

2.2. The disorder played a significant role in the alleged crime

To grant diversion, the judge must be satisfied that the defendant's mental disorder played a significant role in the charged crime. The judge may conclude this if the defendant showed symptoms of the disorder at or near the time of the alleged offense.11

In determining this, the judge may review any relevant and credible evidence, including:

  • Police reports,
  • Preliminary hearing transcripts,
  • Witness statements,
  • Statements by the defendant's mental health treatment provider,
  • Medical records, or
  • Records or reports by qualified medical experts.12

2.3. The defendant would respond to treatment

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

2.4. The defendant waives the right to a speedy trial

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

american constitution california legal experts
A defendant who accepts mental health diversion in California must waive his/her constitutional right to a speedy trial.

2.5. The defendant agrees to treatment

The defendant must agree to comply with treatment as a condition of diversion.17

2.6. The risk of danger to public safety is small

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

3. How long does PC 1001.36 treatment last?

Mental health diversion under Penal Code 1001.36 lasts a maximum of two (2) years.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

4. Who pays for California mental health diversion?

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

5. How is treatment progress measured?

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

judge gavel mental health treatment termination
Mental health treatment can be terminated if a California criminal defendant commits another crime during any period of pretrial diversion.

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

6. What happens when treatment is complete?

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:

  1. Has substantially complied with the requirements of diversion,
  2. Has avoided significant new violations of law unrelated to the defendant's mental health condition, and
  3. 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.

7. Does mental health diversion “seal” a criminal record?

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 employment, benefit, license, or certificate.33

successful job interview after mental health treatment california
Successfully completing California mental health diversion keeps criminal charges from being discovered by most employers.

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

8. Can a record of the arrest be used in immigration court?

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.

9. Difference between PC 1001.36 and proposed Senate Bill 215

As of summer 2018, the California legislature is considering another mental health diversion law. The bill it is considering is California Senate Bill 215 (SB 215), which has recently been amended by the California Assembly.

SB 215 would create a new law, California Penal Code 1001.82 PC. Under proposed PC 1001.82, mental health diversion would essentially the same as under PC 1001.36, but with the following important differences:

  1. PC 1001.82 would permit mental health diversion only for misdemeanors and for felonies that are punishable in county jail.38 A defendant would not be eligible if charged with a felony punishable in California state prison.
  2. Mental health diversion would not be available in cases of certain specified felonies unless the prosecutor consented. These would include felony violations of:

Charged with a crime in California? Call us for help…

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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 at 855-LAWFIRM to discuss your case in confidence with one 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.

Legal references:

  1. California Penal Code 1001.36 PC:

    “(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).

    (b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:

    (1) The court is satisfied that the defendant suffers from 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 recent diagnosis 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 court is satisfied that the defendant's mental disorder played a significant role in the commission of the charged offense. A court may conclude that a defendant's mental disorder played a significant role in the commission of the charged offense if, after reviewing 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, the court concludes that the defendant's mental disorder substantially contributed to the defendant's involvement in the commission of the offense.

    (3) In the opinion of a qualified mental health expert, the defendant's symptoms motivating the criminal behavior would respond to mental health treatment.

    (4) The defendant consents to diversion and waives his or her 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) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.

    (5) The defendant agrees to comply with treatment as a condition of diversion.

    (6) The court is satisfied that 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 violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

    (c) As used in this chapter, “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:

    (1) (A) 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.

    (B) 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.

    (2) 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.

    (3) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.

    (d) 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 him or her 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.

    (e) 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 (g) and (h). The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).

    (f) 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.

    (g) The defendant shall be advised that, regardless of his or her 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 (f), 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.

    (h) 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.

    (i) 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.”

  2. See, e.g., Penal Code 1001.36(c), endnote 1.

  3. Penal Code 1000 PC.

  4. Penal Code 1001.80 PC.

  5. California Penal Code 1001.60-1001.67 PC.

  6. Penal Code 1001.50 - 1001.55 PC.

  7. Penal Code 1001.36(b), endnote 1.

  8. Penal Code 1001.36(b)(1), endnote 1.

  9. Same.

  10. Same.

  11. Penal Code 1001.36(b)(2), endnote 1.

  12. Same.

  13. Penal Code 1001.36(b)(3), endnote 1.

  14. 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.”

  15. Penal Code 1001.36(b)(4), endnote 1.

  16. Same.

  17. Penal Code 1001.36(b)(5), endnote 1.

  18. 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.

  19. Penal Code 1001.36(b)(6), endnote 1.

  20. Penal Code 1001.36(c)(3), endnote 1.

  21. Penal Code 1001.36(c)(1)(B), endnote 1.

  22. Same.

  23. Same.

  24. Same.

  25. Same.

  26. Penal Code 1001.36(c)(2), endnote 1.

  27. Penal Code 1001.36(d), endnote 1.

  28. Same.

  29. Same.

  30. Penal Code 1001.36(e), endnote 1.

  31. Same.

  32. Same.

  33. Penal Code 1001.36(f), endnote 1.

  34. Penal Code 1001.36(g)(1), endnote 1.

  35. Penal Code 1001.36(g)(2), endnote 1. See also Penal Code 851.92.

  36. Penal Code 1001.36(h), endnote 1. See also California Constitution, Article 1, Section 28 on victims' rights.

  37. Penal Code 1001.36(i), endnote 1.

  38. Proposed California Penal Code 1001.82(a)(1): “Notwithstanding any other law, except as specified in paragraph (2), in any case before the court on an accusatory pleading alleging the commission of a misdemeanor offense or felony offense punishable in a county jail pursuant to subdivision (h) of Section 1170, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if he or she meets all of the requirements specified in subdivision (b).”

  39. Proposed Penal Code 1001.82(a)(2): “Diversion is not available under this section without the consent of the prosecution for any of the following offenses:

    (A) Any felony, with the exception of an offense specified in Title 13 (commencing with Section 450) [property crimes] or Title 14 (commencing with Section 594) [malicious mischief] of Part 1 of this code, Division 10 (commencing with Section 11000) of the Health and Safety Code [drug crimes], or Section 10851 of the Vehicle Code [joyriding], including a conspiracy to commit these offenses or acting as an accessory to their commission.

    (B) Any offense involving the unlawful use or unlawful possession of a firearm.

    (C) A violation of Section 192 or 192.5 [manslaughter].

    (D) A violation of Section 288.4, 311.3, 311.4, 311.11, or 647.6 [sex crimes involving children].

    (E) A violation of Section 23153 of the Vehicle Code [DUI causing injury].”

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