Mental Health Diversion Basics

Understanding Penal Code 1001.36 (Mental Health Diversion)

The State of California allows for the court to decide within its discretion if a person is eligible for a diversion program based on mental health.  Defined under Penal Code 1001.36, a person may be granted pretrial diversion if they have a recent diagnosis by a qualified mental health expert.  The mental disorder must be proven by the defense to the satisfaction of the court and may include:

Defendants diagnosed with antisocial personality disorder, borderline personality disorder or pedophilia are not eligible for mental health diversion under this statute.

Qualifying for Diversion

In order to qualify for diversion, the court must find that the “defendant’s mental disorder was a significant factor in the commission of the charged offense.”  In addition, a defendant must show through the opinion of a qualified mental health expert that they would respond to mental health treatment.  If the judge finds that a defendant is an unreasonable risk to public safety if they are treated in the community then they will not qualify for the program.  In determining whether to grant pretrial diversion the judge will weigh the request of the defense, request of the prosecution, needs of the defendants and the interests of the community.

Obtaining a Dismissal

If the court is satisfied with the inpatient or outpatient treatment that the defendant completes and finds that the substantially complied with the requirements, avoided significant new violations and developed a plan in place for long-term mental health care then they may grant a dismissal of the defendant’s criminal charges.

Mental health diversion is a tool used by the courts to assist those with qualified mental health disorders.  A defendant who successfully completes the program may be granted a complete dismissal of the charges.  It is important to discuss your options with a knowledgeable attorney and to find the help you need.