Mental Health Court Diversion.

Penal Code Section 1001.36 permits courts to divert defendants with qualifying misdemeanors or felonies to mental-health treatment before their cases proceed to trial. To be eligible, several specific criteria must be met, and certain procedural requirements must be satisfied:

• Identification of a Qualifying Mental Disorder. The defendant must have a mental disorder as identified in the Diagnostic and Statistical Manual. The statutory language is broad, but it requires specific medical evidence that falls within recognized clinical diagnostic standards.
• The Disorder’s Role in the Charged Offense. A key element is determining if the mental disorder played a “significant role” in the commission of the alleged offense. This requires demonstrating a causal or substantial relationship between the disorder’s symptoms and the behavior that led to the charges.
• Professional Assessment of Treatment’s Viability. A qualified mental-health professional must conduct an assessment to determine whether mental-health treatment is likely to be effective in addressing the defendant’s criminal behavior. This assessment serves as a gatekeeper to ensure that diversion is a legitimate medical intervention rather than an alternative to responsibility.
• Defendant’s Consent. Diversion is a voluntary process. The defendant must consent to diversion, recognizing both its potential benefits and its requirements.
• Waiver of Certain Rights. By choosing diversion, the defendant must agree to waive key legal protections. This includes waiving the right to a speedy trial while the diversion program is active. While necessary to allow time for treatment, this waiver is a strategic decision that could have implications if the diversion process fails.

Essentially, California’s pre-trial mental-health diversion provides a path to recovery rather than punishment, but only for those who qualify, consent to the process, and are clinically deemed eligible.

Which cases can reach a California diversion judge, and what must the motion prove?

According to Penal Code Section 1001.36, California’s mental health diversion is available for defendants facing charges for misdemeanors or felonies. However, there are significant exclusions and requirements that shape the scope of this legal opportunity. As the statute notes:

• “A defendant may not be placed into a diversion program pursuant to this section for any of the following current charged offenses: (1) murder or voluntary manslaughter; (2) an offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314; (3) rape; (4) lewd or lascivious act on a child under 14 years of age; (5) assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220; (6) rape or sexual penetration in concert with another person, in violation of Section 264.1; (7) continuous sexual abuse of a child, in violation of Section 288.5; or (8) a violation of subdivision (b) or (c) of Section 11418.”

There is a point of ambiguity regarding crimes and offenses that do not quite meet these categories. While the statute indicates clear exclusions, it does not comprehensively state how prosecutors must be involved. This creates a notable debate among legal practitioners regarding prosecutors’ consent.

If the eligible charge falls within a category of serious violence or firearms, then, in some cases, prosecutors must be consulted before a case can proceed to diversion. However, the statute does not clearly explain how defendants might prove that the diversion program will successfully divert the case away from trial, even when meeting all other eligibility criteria. Even when eligible charges fall within the categories that allow diversion, the prosecution may still attempt to intervene. The court may require the defendant to make a prima facie showing that the defendant will meet the minimum eligibility requirements and that the defendant and the offense are suitable for diversion.

How must treatment run during up to two years of diversion?

The ultimate aim of mental health court diversion is for the defendant to get the treatment they need and, ideally, for their case to be dismissed. To achieve this, the defendant will need to comply with a treatment plan.

At the same time, there will be specific treatment-related requirements. For example, when applying for diversion, a defendant must agree to comply with any “treatment plan” approved by the court. When the court determines the “adequacy” of a proposed treatment plan, it will ensure that the plan addresses the defendant’s clinical and practical needs. The goal is for the defendant to take meaningful steps toward recovery and long-term behavioral change.

What will the treatment plan entail? Once again, the answer is “it depends.” In California, a treatment plan will typically involve a combination of the following interventions, as appropriate for the individual defendant’s needs:

• Prescribed medications and substance abuse treatment
• Counseling services and other therapeutic interventions
• Inpatient facilities for acute psychiatric care
• Outpatient services and residential programs

These are non-exhaustive examples, and courts can tailor treatment plans to the defendant’s circumstances. During diversion, the court may require the defendant to provide periodic progress reports or attend court-ordered appearances. While these measures are used to ensure compliance, a focused and meaningful effort toward recovery is essential.

The mental health diversion process can take considerable time. While Penal Code Section 1001.36(f)(1)(C) provides that diversion may last no longer than two years for a felony and no longer than one year for a misdemeanor, these timeframes are statutory limits, not mandates. Courts must balance providing sufficient time for meaningful treatment with the interests of all parties involved.

Regardless of the specific form of treatment, all diversion programs have one key requirement: the treatment plan must be substantial and must be tailored to the individual case. Defendants must be dedicated to fulfilling the court-approved treatment requirements for their diversion attempts to be successful.

Todd Spodek cross-examined Alec Baldwin at the 2013 stalking trial in Manhattan.

What remains after successful diversion, and how do competency and military diversion differ?

When a defendant successfully completes a mental-health diversion program in California, the positive outcome generally entails two key legal developments. First, the court shall dismiss the defendant’s criminal charges if the defendant has performed satisfactorily in diversion, and the arrest upon which the diversion was based is deemed never to have occurred, and access to the arrest record is restricted under Penal Code section 1001.9. Second, access to the arrest record associated with the offense is restricted under Penal Code section 1001.9.

However, it is important to understand what “sealed” means in this context. While sealed records are not accessible to the public and generally cannot be disclosed to employers, they remain available to law-enforcement agencies. They remain accessible to criminal-justice agencies, and a court may consider previous participation in diversion when determining eligibility for subsequent mental-health diversion; records related to diversion generally may not be used in another proceeding without the defendant’s consent, subject to statutory exceptions. In this sense, while diversion removes the immediate threat of conviction, it does not erase the incident from judicial or law-enforcement view.

It is also important to distinguish between mental health diversion and other legal processes focused on a defendant’s mental state. For example, mental health diversion is not the same as the competency proceedings under Penal Code Section 1368, which address the question of a defendant’s current state of mind and ability to stand trial. Competency proceedings are distinct from diversion in terms of their purpose, timing, and ultimate impact on the legal case.

Similarly, while there are other types of diversion available in the California criminal justice system, mental health diversion is a separate program. Military diversion, for instance, is specifically tailored to recognize the challenges faced by veterans who may exhibit symptoms of post-traumatic stress disorder (PTSD) or other service-related issues. It focuses on providing the unique forms of treatment and support that veterans need in order to make positive changes in their lives.

In summary, while mental-health diversion is a valuable tool, it is a distinct form of pretrial intervention that exists alongside other mechanisms, each with its own set of eligible individuals, requirements, and outcomes.

Can California diversion statistics answer whether the program works statewide?

The available information does not provide reliable statewide statistics that could answer these questions definitively. The facts do not establish a single, representative completion rate, recidivism reduction percentage, or admission total, among other metrics. The reasons for the absence of these overarching statistics may include the following factors:

• A reliable statewide diversion completion rate has not been established. This is likely due to the fact that the diversion process varies between different counties, courts, and practitioners throughout the state. The effectiveness of individual diversion programs may depend more on the local resources and the individual needs of defendants than on a uniform statewide standard.
• There is no established, reliable statewide recidivism reduction percentage. This indicates that reductions in recidivism may be case-specific rather than a broad trend that can be captured in a single statistic. Demonstrating the program’s efficacy in one situation or jurisdiction does not necessarily allow for a credible statewide generalization.
• The available data does not establish that prosecutors typically oppose diversion requests. While some may seek to intervene, it is more likely that prosecutors’ reactions depend on the specifics of the case, such as the severity of the offense and the quality of evidence.
• Claims indicating that 2025 legislation fundamentally changed Penal Code Section 1001.36 have not been established. This suggests that the fundamental statutory requirements and diversion process for eligible defendants have remained consistent without such notable legislative overhauls.
• A reliable statewide total for mental health diversion admissions during the last year has not been established. This means the overall scale of diversion’s usage statewide remains difficult to precisely quantify across all jurisdictions, further underscoring the importance of assessing diversion based on individual circumstances.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.