What Is California’s New Mental Health Diversion Law?

California mental health diversion is a program under Penal Code Section 1001.36 that lets a judge pause a criminal prosecution and send an eligible defendant into mental health treatment instead of continuing the case. Treatment can last up to two years for a felony or one year for a misdemeanor. If you finish successfully, the charges are dismissed and the arrest is sealed and treated as if it never happened.¹

Who Qualifies

Eligibility has two prongs, and you have to meet both.

The first is a diagnosis. You need a qualifying mental disorder listed in the current Diagnostic and Statistical Manual of Mental Disorders. The statute names bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD as examples, but any qualifying DSM diagnosis can work. Two are categorically excluded: antisocial personality disorder and pedophilia. The diagnosis has to come from a qualified mental health expert and reflect treatment or evaluation within the past five years.¹

The second is a causal link: the disorder must have been a significant factor in the charged offense. This is where the statute helps defendants. Once you produce a qualifying diagnosis, the court must presume the disorder was a significant factor unless the prosecution rebuts that presumption with clear and convincing evidence. The court can draw on police reports, witness statements, medical records, preliminary hearing transcripts, and evidence of symptoms around the time of the offense.¹

Charges That Are Off the Table

Diversion is available for both misdemeanors and felonies. The list of exclusions is narrower than most people assume. The statute bars diversion only for:

Murder or voluntary manslaughter
Offenses requiring sex offender registration under Section 290, except indecent exposure under Section 314
Rape
Lewd or lascivious acts on a child under 14
Assault with intent to commit rape, sodomy, or oral copulation
Rape or sexual penetration in concert with another person
Continuous sexual abuse of a child
Use of weapons of mass destruction under Section 11418(b) or (c)

Everything else is technically eligible. That includes offenses classified as “serious” or “violent” under other parts of the Penal Code. Robbery, assault with a deadly weapon, and burglary are not on the exclusion list. Whether a judge actually grants diversion in those cases turns on the suitability analysis below, especially the public safety piece.¹

What Else the Judge Has to Find

Clearing the eligibility prongs is not enough. The court also has to find you suitable. That means a qualified mental health expert has to conclude your symptoms would respond to treatment, you have to consent to diversion and waive your right to a speedy trial, and the court has to decide that diversion would not pose an unreasonable risk of danger to public safety.¹

That “unreasonable risk” standard is narrower than it sounds. It comes from Proposition 47 (Penal Code Section 1170.18) and means an unreasonable risk that you will commit a new super-strike violent felony, not any new offense. A significant criminal history does not automatically rule you out if the risk of a super-strike is low. The court looks at your violence history, the current charges, the proposed treatment plan, and input from both sides.

How to Ask for Diversion

Either the defense or the court can raise diversion at any pretrial stage. The judge can require a prima facie showing of eligibility first. That initial hearing is informal and can proceed on offers of proof, reliable hearsay, and argument from counsel. If you cannot clear that threshold, the court can deny the request without going further.¹

If the showing is adequate, the matter moves to a full evaluation involving expert evaluations, medical records, and argument from both sides. Prosecutors can weigh in at every stage, and contested cases often come down to dueling experts on the diagnosis, the causal link, or the safety risk. If the court grants diversion, you formally consent and waive speedy trial rights before entering a program.

Treatment, Duration, and Who Pays

Treatment can be inpatient or outpatient and is tailored to your clinical needs. It may include therapy, medication management, residential care, or a combination. The maximum period is two years for a felony and one year for a misdemeanor. During that time the treatment provider sends regular progress reports to the court, the defense attorney, and the prosecutor, and the court keeps jurisdiction and can modify the plan.¹

Treatment can be funded privately or publicly. If you cannot afford private care, the court can refer you to a county mental health agency or an existing collaborative court. There is a catch. The county agency has to agree to accept responsibility for your treatment, and services are only available to the extent resources exist. If a county agency determines it cannot provide services, it can submit a written statement to the court saying so. That statement is not evidence you are unsuitable; it just means that particular program cannot take you then.¹ Access varies by county, and the ability to pay for private treatment often decides whether diversion is realistic.

What You Get if You Finish

If you perform satisfactorily, the court dismisses the criminal charges and the arrest is legally deemed never to have occurred. The court orders the arrest record restricted under Penal Code Section 1001.9. On most applications that ask about prior arrests or diversions, you can truthfully answer no.¹

One exception matters. If you apply for a job as a peace officer, the arrest can still be disclosed by the Department of Justice, and you still have to disclose it on the application. Law enforcement agencies also retain the ability to access sealed records.

For California professional licensing, protection is more explicit. Under AB 2138, licensing boards cannot deny a license based on an arrest that did not result in a conviction. Because successful diversion ends in dismissal, the arrest generally cannot be held against you in a licensing decision.²

What Happens if Diversion Fails

Diversion is not a free pass. If something goes wrong, the court holds a hearing to decide whether to reinstate criminal proceedings, modify the treatment plan, or initiate conservatorship proceedings. Four situations trigger that hearing:

You are charged with a misdemeanor committed during diversion that reflects a propensity for violence.
You are charged with any felony committed during diversion.
You engage in criminal conduct that makes you unsuitable for continued diversion.
A qualified mental health expert concludes you are performing unsatisfactorily in the program or are gravely disabled.

If the court reinstates proceedings, the case picks up where it left off before diversion, and you face the original charges.¹

If Your Case Is Older

In People v. Frahs (2020), the California Supreme Court held that the mental health diversion statute applies retroactively to cases that were not yet final on appeal when the law took effect. Defendants convicted before the law passed, but whose appeals were still pending, can request a remand to the trial court for a diversion hearing. If your case is already final and all appeals are exhausted, that retroactivity ruling does not reach you.³

1
California Legislative Information. California Penal Code 1001.36 – Pretrial Diversion of Individuals With Mental Disorders
2
California Board of Behavioral Sciences. Criminal Conviction FAQ – AB 2138
3
Justia Law. People v. Frahs (2020) – Supreme Court of California