Penal Code 1001.36 (Mental Health Diversion)

California Courts and Mental Health Pretrial Diversion

If you are charged with a crime and have a qualifying mental health disorder you may be eligible for a pretrial diversion program under Penal Code 1001.36.  Pursuant to this code section, the court may find within its discretion, that a defendant’s underlying mental health disorder was a substantial factor in the commission of the crime.  In order to qualify the defense must show a recent diagnosis of a mental disorder by a qualified mental health expert.

Benefits of Mental Health Diversion

The State of California recognizes a number of qualifying mental disorders including bipolar disorder, schizophrenia, schizoaffective disorder and post-traumatic stress disorder which may contribute to a person’s likelihood that they will commit certain crimes.  In the hopes of addressing the underlying mental disorder, the courts have been given discretion to enroll defendants in a pretrial diversion program.  A defendant who successfully completes the program may be eligible for a dismissal of the criminal charges.

Determining Eligibility in the Program

The court must find that the mental disorder was a significant factor in the commission of the charged offense.  To determine whether the disorder was a significant factor the court will review “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
  • Evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense”

A defendant must waive their right to a speedy trial and must agree to comply with treatment.  Treatment can include a court approved inpatient or outpatient program.  A judge must find that the defendant is not an unreasonable risk to public safety if treated in the community in order to qualify for diversion.

Successful Completion of Mental Health Diversion

If a judge finds that the defendant has substantially complied with all requirements of the program, avoided any significant new violations, and has a plan in place for long-term mental health care then they may grant a dismissal of the criminal charges.

Mental health diversion is an important program for qualifying defendants.  Not only will the diversion program help to address any underlying mental health disorders, it can also assist with eliminating the criminal conviction under certain circumstances.