Mental Health Diversion Eligibility

Restrictions on Eligibility for Mental Health Diversion Under PC 1001.36

Penal Code § 1001.36 authorizes a court to grant pretrial diversion to defendants suffering from a mental health disorder.  Qualified mental health disorders include but are not limited to bipolar disorder, schizophrenia, schizoaffective disorder and post-traumatic stress disorder.  The defense must provide evidence to the court of the defendant’s mental health disorder.  Evidence of the disorder must include a “recent diagnosis by a qualified mental health expert.”

Ineligible Defendants

Existing law makes defendants charged with the following crimes ineligible for diversion:

  • Murder or voluntary manslaughter
  • Offenses that require a person to register as a sex offender
  • Rape
  • Lewd or lascivious act on a child under 14 years of age
  • Assault with intent to commit rape, sodomy, or oral copulation
  • Commission of rape or sexual penetration in concert with another person
  • Continuous sexual abuse of a child
  • Violation of Penal Code § 11418 (b) or (c)

In addition, those diagnosed with antisocial personality disorder, borderline personality disorder and pedophilia are considered ineligible pursuant to this statute.

Successful Completion of the Program

A court may grant a dismissal of the charges if the defendant successfully completes the diversion program.  If a defendant in the diversion program fails to substantially comply with all requirements of the inpatient or outpatient program they attend, is charged with a new offense or fails to have a plan in place for long-term mental health care, relief will not be granted.

Pretrial Diversion Programs

Pretrial diversion programs are an important tool utilized by the courts.  If successful, a defendant may have the criminal charges dismissed.  It is always important to consult a qualified criminal defense attorney if you have been charged with a crime.