Understanding Penal Code 1001.36

Getting Your Case Dismissed with Mental Health Diversion


California Penal Code 1001.36 defines when a court can grant pretrial diversion to a defendant suffering from a mental disorder. In order to be eligible, the defendant must suffer from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

Qualifying mental disorders for pretrial diversion, include but are not limited to:

  • Bipolar disorder
  • Schizophrenia
  • Schizoaffective disorder
  • Post-traumatic stress disorder

Mental disorders that are explicitly excluded from eligibility include:

  • Antisocial personality disorder
  • Borderline personality disorder
  • Pedophilia

Evidence of the mental disorder must be presented by the defense and must include a “recent diagnosis by a qualified mental health expert.” 

A mental health expert may rely on the following when offering their opinion as to whether the defendant suffers from an eligible disorder:

  • Examination of the defendant
  • The defendant’s medical records
  • Arrest reports
  • Other relevant evidence

In granting pretrial diversion based on mental health, the court must be satisfied that the disorder was a significant factor in the commission of the charged offense. The mental health expert must be willing to testify that the defendant would respond to mental health treatment if the diversion was granted.

As part of the agreement, the defendant agrees to waive his or her right to a speedy trial and comply with treatment. There are certain crimes that would deem the defendant ineligible for diversion including murder, voluntary manslaughter, rape, and more. If successful in diversion, a defendant may be eligible to have their case dismissed.

It is important to discuss your case with a licensed criminal defense attorney if you believe that you are eligible for mental health diversion. The program can last for a period of up to two years and must be satisfactorily completed in order to be eligible for dismissal.