Felonies & Violent Crimes · October 28, 2026 · 7 min read
PC 1001.36 Mental Health Diversion: When Treatment Takes the Place of a Conviction
California's mental health diversion law reaches far more cases than most people expect, including serious felonies. Who qualifies, what is excluded, and how a charge ends in dismissal.
Criminal defense only. We do not file lawsuits or represent victims.
In short: Penal Code § 1001.36 lets a California judge pause a criminal case so the accused can receive mental health treatment instead of going to trial. Diversion lasts up to two years for a felony and one year for a misdemeanor. If the person performs satisfactorily, the court dismisses the charges and the arrest is deemed never to have occurred. Only a short list of charges is excluded outright, and attempted murder is not on it.
A different question from “guilty or not guilty”
Most of a criminal case is an argument about what happened. Mental health diversion asks something else: why it happened, and whether treatment is a better answer than a conviction.
The Legislature's answer, written into Penal Code § 1001.36, is that for many people it is. The statute allows the court to postpone prosecution “at any point in the judicial process from the point at which the accused is charged until adjudication” so the person can complete a program of inpatient or outpatient mental health treatment. The case does not go away on the day diversion is granted. It waits. What happens at the end of the waiting period depends on how the treatment went.
Who is eligible
The statute splits the analysis into two stages. The first is eligibility, and it has two parts:
- A diagnosed mental disorder. The condition must be one identified in the current Diagnostic and Statistical Manual of Mental Disorders (DSM). The statute names bipolar disorder, schizophrenia, schizoaffective disorder and post-traumatic stress disorder as examples, and excludes antisocial personality disorder and pedophilia. The defense must show a diagnosis or treatment by a qualified mental health expert within the last five years.
- The disorder was a significant factor in the charged offense. Since January 1, 2023, the law presumes this. Once a diagnosis is shown, the court must find the disorder was a significant factor unless there is clear and convincing evidence that it was not a motivating, causal or contributing factor. Before that change, the defense carried the burden. Now the prosecution does, at a high standard.
Who is suitable
Eligibility opens the door. Suitability decides whether the court walks through it. The statute requires all four of these:
| Requirement | What it means in practice |
|---|---|
| Treatment will help | A qualified mental health expert gives the opinion that the symptoms behind the conduct would respond to treatment |
| Consent and time waiver | The accused agrees to diversion and waives the right to a speedy trial (with a separate route for people found incompetent to stand trial) |
| Agreement to comply | The accused agrees to follow the treatment plan as a condition of diversion |
| No unreasonable risk to public safety | The court finds the person would not pose an unreasonable risk of danger if treated in the community. “Unreasonable risk” is defined by Penal Code § 1170.18: a risk of committing one of the most serious violent felonies, sometimes called “super strikes” |
Source: Cal. Penal Code § 1001.36(c). The court may consider the treatment plan, violence and criminal history, the current charge and any other factor it finds appropriate.
In serious cases the fourth requirement is where the hearing is won or lost. The question is not whether the charge is serious; the Legislature already answered that by deciding which charges to exclude. The question is whether this person, with this treatment plan, is likely to commit a super strike if treated outside custody. That is a question the defense can build evidence for: expert evaluations, treatment history, a concrete placement, and the supports around the person.
Which charges are excluded
The exclusion list in § 1001.36(d) is short. Diversion is not available when the current charge is:
- Murder or voluntary manslaughter
- An offense that would require sex offender registration under Penal Code § 290 (indecent exposure under § 314 excepted)
- Rape
- A lewd or lascivious act on a child under 14
- Assault with intent to commit rape, sodomy or oral copulation (§ 220)
- Rape or sexual penetration in concert (§ 264.1)
- Continuous sexual abuse of a child (§ 288.5)
- Use of a weapon of mass destruction (§ 11418(b) or (c))
Everything else is at least eligible to be considered, including many violent felonies, strike offenses and, notably, attempted murder. Eligible does not mean granted: the judge still has discretion, and the prosecution can and often does oppose. But for a family that assumed a serious charge closed every door, the list is worth reading twice.
Eligible does not mean granted: the judge still has discretion, and the prosecution can and often does oppose.
What happens during diversion
Less drama than people fear, and more structure. The court approves a specific treatment program, inpatient or outpatient, public or privately funded, and the provider sends regular progress reports to the judge, the defense and the prosecutor. The court can also hold a hearing on restitution to any victim and order it paid during the diversion period, though an inability to pay because of indigence or a mental disorder cannot be a reason to deny or end diversion.
The time limits are fixed: no longer than two years for a felony and no longer than one year for a misdemeanor.
Diversion can be reinstated as a prosecution. The court will hold a hearing if the person is charged with a new felony, a new misdemeanor reflecting a propensity for violence, engages in criminal conduct that makes diversion unsuitable, or, in an expert's opinion, is performing unsatisfactorily in treatment. A hearing is not an automatic termination; the court can also modify the treatment.
What happens at the end
If the person has performed satisfactorily, the court dismisses the charges. The statute defines satisfactory performance practically: substantial compliance with the requirements, no significant new violations of law unrelated to the mental health condition, and a plan in place for long-term care.
After dismissal, the arrest is deemed never to have occurred, access to the arrest record is restricted, and the person may generally answer questions about their record as if they were not arrested or diverted for the offense. Records from the diversion cannot, without consent, be used to deny employment, a benefit, a license or a certificate. Two exceptions apply: the arrest must still be disclosed on applications to become a peace officer, and sealed records remain available to criminal justice agencies.
Three kinds of diversion, side by side
| Case reference | Mental health (PC 1001.36) | Drug (PC 1000) | Judicial (PC 1001.95) |
|---|---|---|---|
| Charges covered | Misdemeanors and felonies, except the listed exclusions | Simple possession and personal-use drug offenses | Misdemeanors only, with some exclusions |
| Core requirement | Diagnosed disorder that was a significant factor; treatment will help | Personal-use offense and eligibility history | Judge's discretion over the defense request |
| Maximum length | 2 years (felony) · 1 year (misdemeanor) | 12 to 18 months | Up to 24 months |
| On completion | Charges dismissed; arrest deemed not to have occurred | Charge dismissed | Charge dismissed |
General comparison. Each program has its own eligibility rules and exceptions. The statutes: Penal Code § 1000 and Penal Code § 1001.95. See our guide to PC 1000 drug diversion.
If someone you love is charged right now
Three things matter most, and all three favor moving early.
Gather the history. Diagnoses, treatment records, medications, hospitalizations. The five-year diagnosis window and the expert opinion both run on documents, and families usually hold more of them than they realize.
Get the right evaluation. The statute turns on a qualified expert's opinion that treatment will work. Choosing that expert, and what they review, is a defense decision with real consequences.
Build the placement before the hearing. A judge weighing public safety wants to see where the person will be treated, by whom, and with what supervision. A plan on paper is stronger than a promise in court.
A case like this is also usually a serious felony defense on every other front at once: bail, the preliminary hearing, the evidence. Diversion is argued alongside that defense, not instead of it.
Mental health diversion in Los Angeles
PC 1001.36 applies statewide. In LA County the request is made to the judge handling the case, with a report from a qualified mental health professional.
| In LA | What it means for you |
|---|---|
| Who responds | The District Attorney on felonies; the LA City Attorney on misdemeanors inside city limits. |
| Treatment | The plan has to name a real program the person can start. We help families find one in LA County. |
| Where heard | At the courthouse where the case is pending, from Foltz downtown to Van Nuys, Torrance or Pasadena. |
We take cases from across Los Angeles County, including Downtown LA, Koreatown, Hollywood, Echo Park and Boyle Heights; Van Nuys, North Hollywood, Sherman Oaks, Burbank, Glendale and San Fernando; Pasadena, Alhambra, East LA, Pomona and Whittier.
Questions we hear on this
01Can you get mental health diversion for a felony in California?
Yes. Penal Code § 1001.36 applies to both misdemeanors and felonies. Only the charges listed in subdivision (d) are excluded, such as murder, voluntary manslaughter, rape and offenses requiring sex offender registration. For a felony, diversion can last up to two years.
02Is attempted murder eligible for mental health diversion?
It is not on the statute's exclusion list, so it can be considered. The court must still find the person eligible and suitable, including that they would not pose an unreasonable risk of committing a super-strike offense if treated in the community. Grants in cases this serious are hard-won and depend heavily on the evidence the defense presents.
03Does the prosecutor have to agree?
No. The court considers the positions of both the defense and the prosecution, but the decision is the judge's. A prosecutor's objection is weighed; it is not a veto.
04What mental health conditions qualify?
Any mental disorder identified in the current DSM, including bipolar disorder, schizophrenia, schizoaffective disorder and PTSD. Antisocial personality disorder and pedophilia are excluded. The diagnosis or treatment must come from a qualified mental health expert within the last five years.
05What happens if diversion does not work out?
The court holds a hearing and can modify the treatment or reinstate the criminal case. If the case resumes, it proceeds from where it was paused. Diversion is not an admission of guilt, and the defense on the merits remains available.
06Will the case show up on a background check after diversion?
After successful completion and dismissal, the arrest is deemed never to have occurred and access to the record is restricted. Diversion records cannot be used, without consent, to deny employment, benefits or a license. Peace officer applications and criminal justice agencies are the exceptions.