Mental Health Diversion (Penal Code § 1001.36) in Los Angeles

What 1001.36 authorizes

California Penal Code section 1001.36 authorizes pretrial diversion for defendants with qualifying mental disorders. If granted, criminal proceedings are postponed for up to two years while the defendant participates in a court-approved treatment program. Upon successful completion, the criminal charges are dismissed and the arrest record is sealed.

Eligibility criteria

To be eligible under PC 1001.36(b), the defendant must meet all of the following:

• A qualifying mental disorder. The disorder must be identified in the DSM-5. Qualifying disorders explicitly include bipolar disorder, schizophrenia, schizoaffective disorder, PTSD, and others. Antisocial personality disorder, borderline personality disorder, and pedophilia are excluded by statute.
• The disorder played a “significant role” in the alleged offense. The defense bears the burden of showing connection between the disorder and the conduct.
• A qualified mental health expert has opined that the symptoms motivating the criminal behavior would respond to mental health treatment.
• The defendant consents to diversion and to treatment and waives the right to a speedy trial during the diversion period.
• The defendant agrees to comply with treatment as a condition of diversion.
• The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Excluded offenses

PC 1001.36(d) excludes the following offenses from mental health diversion:

• Murder or voluntary manslaughter.
• Certain sex offenses (rape, sodomy by force, etc.).
• Lewd or lascivious acts on a child under 14.
• Assault with intent to commit certain sex offenses.
• Continuous sexual abuse of a child.
• Use or threat of weapons of mass destruction.

Most California misdemeanors and a substantial portion of felonies remain eligible.

How the motion works

1. The defense retains a qualified mental health expert (a psychiatrist or psychologist) who evaluates the defendant and prepares a written report.
2. The defense files a motion for 1001.36 diversion attaching the expert report and a proposed treatment plan.
3. The prosecution responds. The DA may oppose on dangerousness grounds or on the strength of the qualifying-disorder showing.
4. The court holds a hearing. The defense expert may testify or submit a declaration. The court evaluates eligibility and dangerousness.
5. If granted, the court approves a treatment plan (typically outpatient with a county or private provider) and sets a return date.
6. The defendant completes treatment while reporting periodically to the court.
7. On successful completion, the case is dismissed and the arrest record is sealed under PC 1001.36(h).

Duration and completion

Diversion under PC 1001.36 may last up to two years. Successful completion requires substantial compliance with the treatment program and no new criminal charges during the diversion period. If the defendant fails to comply, the court may terminate diversion and reinstate the criminal proceedings.

Why it matters

For defendants whose criminal conduct stemmed from untreated mental illness, PC 1001.36 offers a path to both treatment and a clean record. The sealing of the arrest record on successful completion is broader than for most other diversion programs — most employment, housing, and licensing applications can be answered as if the arrest never occurred.

Related procedure pages

• Pretrial misdemeanor diversion (PC 1001.95)
• Motion to suppress evidence (PC 1538.5)