What is mental health diversion in California?

A: It is a route out of a criminal case: the court postpones the prosecution, you complete a mental health treatment programme, and if you do it satisfactorily the court dismisses the charges and the arrest "shall be deemed never to have occurred."¹

It is not automatic and it is not a right. The court "may, in its discretion, and after considering the positions of the defense and prosecution," grant it.² But the statute was rewritten in 2022, and the rewrite moved a great deal in the defendant's favour. Most published material — including a lot of it written by lawyers — still describes the old version.

The change that matters most

Eligibility now has two elements, not six. Everything else moved into a separate "suitability" test.³

Element one — a diagnosis. A mental disorder identified in the current DSM, "including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia." The evidence "shall be provided by the defense" and must include a diagnosis or treatment within the last five years by a qualified mental health expert.⁴ That expert may rely on an examination, medical records, arrest reports, "or any other relevant evidence."⁴

Element two — and read this sentence twice:

"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."⁵

That is a presumption running for the defendant, rebuttable only by clear and convincing evidence — a demanding standard. Get the diagnosis in, and the second element is presumed. The statute is written impersonally and does not name who carries the burden, but in practice the party arguing the disorder was not a significant factor is the one that has to produce that evidence.

Suitability — four things, all required

Once eligible, the court considers whether you are suitable, which requires all of:⁶

1. A qualified mental health expert's opinion that the symptoms causing or contributing to the criminal behaviour would respond to treatment;
2. Your consent to diversion and waiver of the right to a speedy trial;
3. Your agreement to comply with treatment;
4. That you "will not pose an unreasonable risk of danger to public safety," using the definition in Penal Code section 1170.18 — which is a narrow, specific test, not a general impression.

Who is shut out

Eight current charged offences are excluded outright: murder or voluntary manslaughter; an offence requiring section 290 registration except a violation of section 314; rape; a lewd or lascivious act on a child under 14; assault with intent to commit rape, sodomy or oral copulation; rape or sexual penetration in concert; continuous sexual abuse of a child; and a violation of Penal Code section 11418(b) or (c).⁷

Everything else — including a felony — is on the table.

How long, and what it costs

**Two years maximum for a felony, one year for a misdemeanour.**⁸

On cost, we are going to be plain, because nobody else is. Section 1001.36 says nothing about who pays for the treatment. We searched the section for "fee," "cost," "afford," "insurance," "Medi-Cal" and "ability to pay." The statute says only that treatment "may be procured using private or public funds," and that a referral to a county agency or collaborative court can be made "only if that entity has agreed to accept responsibility… and mental health services are provided only to the extent that resources are available."⁹

There is one protective clause, and it is about restitution, not treatment: "a defendant's inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion."¹⁰ No equivalent clause protects you on the cost of the treatment itself. If money is the obstacle, that is a conversation to have with counsel before the plan is proposed, not after. What therapy costs in California → · Medi-Cal covers therapy at $0 →

One thing that helps: if a county programme says it cannot take you, 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."¹¹ A full county programme is not a finding against you.

If it goes wrong mid-stream

Reinstating the prosecution is not automatic. Where the defendant picks up an additional felony, an additional misdemeanour "that reflects the defendant's propensity for violence," engages in conduct rendering them unsuitable, or an expert finds them performing unsatisfactorily or gravely disabled, the court "shall… hold a hearing" to decide whether to reinstate proceedings, modify the treatment, or refer for conservatorship.¹² Modification is on the menu.

If you are found incompetent on a misdemeanour

Different statute, similar destination. On a misdemeanour-only case where the defendant is found mentally incompetent, the court holds a hearing that can grant diversion for no longer than one year, and that hearing "shall be held no later than 30 days after the finding of incompetence" — if it is delayed past 30 days, "the court shall order the defendant to be released on their own recognizance."¹³ A misdemeanour DUI is expressly divertible on this route, notwithstanding the usual bar.¹⁴ And where none of the routes fit, the court "shall dismiss the charges."¹⁵ The Legislature said in terms that such a defendant should "receive mental health treatment in a treatment facility and not a jail."¹⁶

Do this: if you or someone you love is facing charges and has any mental health history, say the words "mental health diversion under Penal Code section 1001.36" to the defence lawyer at the first meeting, and start gathering the evidence of a diagnosis or treatment within the last five years — records, a letter from a treating clinician, discharge paperwork. That evidence is the defence's job to produce, and producing it is what triggers the presumption. If there is no diagnosis yet, getting an evaluation is the first move, not the last. What happens at an intake → · Is court-ordered therapy confidential? →

Sources

1. Penal Code §1001.36(h) — leginfo.legislature.ca.gov. The section as it now reads was restructured by SB 1223 (Stats. 2022, Ch. 735); the firearm provisions at subdivision (m) were added by AB 455 (Stats. 2023, Ch. 236), operative 1 July 2024; the current credit line is Stats. 2024, Ch. 647, §1.5 (SB 1400), effective 1 January 2025.
2. Penal Code §1001.36(a).
3. Penal Code §1001.36(b) — "A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met."
4. Penal Code §1001.36(b)(1).
5. Penal Code §1001.36(b)(2).
6. Penal Code §1001.36(c)(1)–(4).
7. Penal Code §1001.36(d)(1)–(8).
8. Penal Code §1001.36(f)(1)(C)(i)–(ii).
9. Penal Code §1001.36(f)(1)(A)(ii).
10. Penal Code §1001.36(f)(1)(D).
11. Penal Code §1001.36(f)(1)(A)(iii).
12. Penal Code §1001.36(g)(1)–(4).
13. Penal Code §1370.01(b)(1)(A)(i)–(B) — leginfo.legislature.ca.gov. Which statute applies is set by Penal Code §1367(b): §1370 for felonies, §1370.01 for misdemeanours only.
14. Penal Code §1370.01(b)(1)(A)(ii).
15. Penal Code §1370.01(c)(5).
16. Penal Code §1370.01(d).
17. Purposes of the chapter: Penal Code §1001.35 — leginfo.legislature.ca.gov.

All sections read on the operative text on 18 August 2026. This page describes the statute; it is not legal advice, and a criminal case is the clearest example there is of a situation where you want a lawyer rather than a web page.