Mental Health Diversion in California: Eligibility, Process, and Costs

Mental health diversion in California, authorized by Penal Code 1001.36, lets a judge pause a criminal case and send a defendant with a qualifying mental disorder into treatment instead of prosecution. Finish the program and the charges are dismissed; the arrest is treated as if it never happened. Diversion can run up to two years on a felony or one year on a misdemeanor, and most offenses are at least theoretically eligible.¹

Who Qualifies

Eligibility works in two layers. First the defendant has to meet the statute’s threshold requirements. Then the court separately decides whether the defendant is suitable. Both are required.

The Diagnosis Requirement

You need a diagnosed mental disorder listed in the current DSM. The statute names bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD, but any recognized DSM condition can qualify. Two are expressly excluded: antisocial personality disorder and pedophilia.¹

The defense has to put forward evidence of a diagnosis or treatment from a qualified mental health professional within the last five years. The expert can rely on direct examination, medical records, arrest reports, or other relevant evidence.¹

The Significant Factor Link

The mental disorder must have been a significant factor in the charged offense. Once a qualifying diagnosis is established, the statute presumes the disorder was a significant factor. The prosecution can rebut that presumption only by clear and convincing evidence that the disorder was not a motivating, causal, or contributing factor. That presumption is a real advantage for the defense. The court can look at police reports, preliminary hearing transcripts, witness statements, medical records, and expert opinions when deciding.¹

Suitability

Clearing the diagnosis bar is not enough. The court also has to find all of the following:

A qualified mental health expert opines the defendant’s symptoms would respond to treatment.
The defendant agrees to diversion and waives the right to a speedy trial.
The proposed treatment program meets the defendant’s needs.
The defendant would not pose an unreasonable risk of danger to public safety if treated in the community.

Judges can also weigh input from the prosecutor, the defense, and any mental health expert, along with the defendant’s violence and criminal history and the nature of the current charges.¹

The public safety standard sounds vague but has a narrow legal meaning. Under Penal Code 1170.18, “unreasonable risk of danger to public safety” means an unreasonable risk that the defendant will commit a “super strike” under Penal Code 667(e)(2)(C)(iv), which covers offenses like sexually violent crimes, certain sex offenses against children, and crimes punishable by life or death.² A record with lower-level violence does not automatically fail the test. The real question is whether community treatment would create an unreasonable risk of a super-strike-level offense.

Charges That Cannot Be Diverted

Some offenses are off the table no matter how strong the mental health evidence is:

Murder or voluntary manslaughter
Rape
Lewd or lascivious acts on a child under 14
Assault with intent to commit rape, sodomy, or oral copulation
Rape or sexual penetration committed in concert with another person
Continuous sexual abuse of a child
Any offense requiring sex offender registration, except indecent exposure under Penal Code 314
Use of weapons of mass destruction under Penal Code 11418(b) or (c)

Everything else is at least theoretically eligible, including serious felonies like robbery, assault with a deadly weapon, and arson. In practice, the more serious the charge, the harder the public-safety showing becomes.¹

How Long Diversion Lasts and What Treatment Looks Like

The maximum diversion period is two years for a felony and one year for a misdemeanor. The clock starts when the court grants diversion.

Treatment can be inpatient or outpatient, and the court has to be satisfied the proposed program meets the defendant’s specific mental health needs. Funding can be private or public, and referrals can go to county mental health agencies, collaborative courts, or assisted outpatient treatment programs, provided those entities agree to accept the defendant and have capacity.¹

Once placed, the defendant’s provider sends regular progress reports to the court, the defense attorney, and the prosecutor. Those reports are how the judge tracks compliance.

How to Ask the Court for Diversion

The defense files a motion for pretrial diversion under Penal Code 1001.36. The motion needs evidence supporting each eligibility element and a proposed treatment plan. The defendant enters a not-guilty plea and waives speedy trial rights, which pauses the prosecution clock while diversion runs.¹

Pulling the package together is usually the slowest part. You need a mental health evaluation that ties the diagnosis to the alleged conduct, a treatment plan the court will approve, and enough documentation to answer the public-safety question. That takes coordination between the attorney, the expert, and prospective treatment providers.

There is a separate path for defendants found incompetent to stand trial. If a defendant cannot consent to diversion or waive speedy trial rights because of incompetence, the court can still place them in diversion in lieu of commitment to a state hospital for competency restoration, through a Department of State Hospitals program for felony defendants.³

What Successful Completion Gets You

If the defendant finishes the program, the court dismisses all charges that were pending when diversion was granted. The court can find satisfactory performance when the defendant substantially complied with treatment, avoided significant new law violations unrelated to the mental health condition, and has a plan for long-term care.¹

The record relief is unusually strong. After dismissal, the arrest is deemed never to have occurred, and the court orders access to the arrest record restricted under Penal Code 1001.9. A person who completes diversion can lawfully say, in response to questions about criminal history, that they were not arrested or diverted for the offense. Narrow exceptions apply for some government inquiries, but for employment, housing, and professional licensing, the arrest functionally disappears.¹

What Ends Diversion Early

When problems come up, the court holds a hearing to decide whether to reinstate the criminal case, modify treatment, or in some cases refer the defendant for conservatorship. The statute lists events that require a hearing:

A new misdemeanor charge that reflects a propensity for violence
A new felony charge during diversion
Ongoing criminal conduct that makes the defendant unsuitable
A qualified mental health expert’s finding that the defendant is performing unsatisfactorily
A qualified mental health expert’s finding that the defendant is gravely disabled, which can lead to a conservatorship referral

Termination is not automatic. Judges have discretion at the hearing and can modify treatment instead of ending diversion. If diversion is terminated, the original charges come back and the case moves forward as though the pause never happened.¹

Costs to Plan For

The statute does not address costs, but two line items are predictable. Forensic mental health evaluations, which are essential to establish the diagnosis and the significant-factor link, typically run between roughly $1,250 and $10,000 depending on the case and the expert. Some counties charge administrative or enrollment fees for the diversion program itself, usually modest, ranging from nothing to around $500. Indigent defendants may be able to have evaluation costs covered through the public defender’s office or county mental health resources, depending on local funding.

A Separate Track for Veterans

If the defendant is a military veteran, Penal Code 1001.80 provides a different pretrial diversion program that covers a broader set of conditions, including sexual trauma, traumatic brain injury, PTSD, substance abuse, and mental health problems resulting from military service. On misdemeanors the veteran only needs to show the condition may exist; on felonies, the condition must have been a significant factor in the offense.⁴ Veterans who qualify under both statutes should talk through with counsel which pathway offers better terms.

Pending Legislation: Assembly Bill 46

Assembly Bill 46, pending in the 2025–2026 session, would tighten the program meaningfully if enacted. It would remove the presumption that the mental disorder was a significant factor, shifting that burden to the defense. It would change the safety standard from “unreasonable risk of danger” to simply “risk of danger,” lowering the bar for denial. It would add attempted murder to the list of excluded offenses. And it would add conduct disorder that causes or threatens physical harm to people or animals to the list of excluded diagnoses.

As of early 2026, AB 46 has not been signed into law, and the rules described above reflect current law. If the bill passes, the significant-factor and public-safety determinations will be noticeably harder.

1
California Legislative Information. California Penal Code 1001.36
2
California Legislative Information. California Penal Code 1170.18
3
California Department of State Hospitals. DSH Diversion Program
4
California Legislative Information. California Penal Code 1001.80