If you are charged with a crime and struggling with a mental health issue, you have an opportunity for relief. Thanks to the mental health diversion program. Introduced in 2018, California judges can now order counseling and treatment in place of punitive measures like incarceration. If completed, the program seals your criminal record, positioning you on the road to recovery. At Riverside Criminal Defense Attorney Law Firm, we have committed our practice to helping clients in mental health law. We are glad that we can use the legal option to realize justice for you, limit the devastating impact of behavior stemming from your mental health condition, and safeguard your future.

Defining Mental Health Diversion Program

Penal Code 1001.36 is a form of California pretrial diversion. The program permits some defendants to receive mental health counseling and treatment when charged with an offense.

Generally, willing defendants can postpone any legal action in their cases and participate in the treatment program. You can request the program at any stage in your case before you are sentenced.

After completing the pretrial program, the court will dismiss your charges and seal your arrest record.

Other forms of California pretrial diversion programs include:

  • Drug diversion program (PC 1000) — Allows an education and treatment diversion program for persons charged with non-violent and low-level drug offenses without prior disqualifying convictions within five years.
  • Military diversion program (PC 1001.80) —You qualify for this treatment and diversion program if you suffer from either traumatic brain injury, mental health challenges, substance abuse, sexual trauma, or post-traumatic stress disorder.
  • The misdemeanor diversion program (PC 100.95 -100.97) significantly increases the number of diversion opportunities for several California misdemeanor charges. A defendant can have their case dismissed or sealed after completing a court-imposed treatment or education program. Defendants are not required to enter a no contest or not guilty plea.

Qualifying for a diversion program can be complicated. Consequently, defendants require a seasoned criminal defense lawyer to help them achieve the best possible case outcome.

Generally, this pretrial diversion lasts for two years. It can include outpatient or inpatient treatment.

Before approving the program, the judge will consider:

  • Your needs
  • Your community's interests
  • The prosecutor's request
  • Your criminal defense lawyer's request

The possibility of being granted the pretrial diversion depends on what you can establish. The ability to answer the following questions is essential to the success of obtaining the program:

  • Can you verify that you are diagnosed with a mental health disease?
  • Can you establish that the ailment contributed to your law violation?
  • Can you prove that you will respond favorably to your treatment with a reduced risk of violating the law again?

Benefits of the Pretrial Diversion Program

The program offers benefits to both the defendant and the public. Typically, the defendants do not have a history of committing violent crimes and have mental conditions that professionals believe can be treated. It makes persons eligible for the program more likely to keep out of trouble and avoid endangering themselves and others.

Penal Code 1001.36 aims to seek treatment over punishment when a defendant significantly commits an offense due to a treatment mental health condition. Hopefully, more defendants will receive the treatment they require to recover or manage their condition. The defendants are also educated about their choices and decision-making in a meaningful manner.

The diversion also helps eligible defendants keep their employment positions or makes it easier to secure other jobs, allowing them to become productive members of society.

Finally, keeping treatable defendants out of prison relieves burdened courts, overcrowded detention centers, and taxpayers.

The Process for Obtaining Diversion

Typically, this pretrial diversion is acquired by your criminal defense lawyer filing a written motion in court requesting the judge to grant diversion. It happens after a competent psychiatrist or psychologist examines you, and your lawyer prepares a written report and submits it together with the motion. The district attorney in the case will respond in writing to your motion. Finally, your lawyer will argue the case before the judge, who determines whether to grant the pretrial diversion or not.

If granted the program, you should comply with the diversion. Otherwise, the pretrial diversion will be revoked, and your case will proceed as if nothing happened.

What Happens If You Decide You Do Not Want to Participate in the Pretrial Diversion Program?

If you decide you no longer want to participate in the program, ensure you notify the court. Your case will be returned to court and a court date scheduled.

Mental Health Diversion Eligibility

You can be considered for the pretrial diversion program regardless of whether you committed a felony or a misdemeanor. However, the court will only approve the program if you meet all the conditions below:

You Suffer From a Psychological Disease

To be eligible for the diversion, you should have a mental disease listed in the Diagnostic and Statistical Manual of Mental Disorders. Some of the qualifying conditions include:

  • Schizoaffective disorder
  • Schizophrenia
  • Bipolar disorder
  • Post-traumatic stress disorder

Please note that the court cannot place you in the pretrial diversion program if you have a borderline personality disorder, pedophilia, and antisocial personality disorder.

Your criminal defense lawyer should present proof of a skilled mental health professional's recent medical diagnosis. The expert can use any of the following evidence:

  • Your medical records
  • Your examination
  • Arrest report

Your Disorder was the Primary Cause of Your Alleged Criminal Conduct

Before granting the diversion, you should convince the court that your condition was the primary cause of the offense. The judge determines this if you exhibited symptoms of mental health condition near or during the crime commission.

When deciding this, the court will review the following credible and relevant evidence:

  • Preliminary hearing transcript
  • Police reports
  • Medical records
  • Reports and records by skilled medical professionals
  • Witness statements
  • Your mental health treatment provider's statements

You Will Respond to Your Treatment

To obtain diversion, you should convince your skilled mental health professional that treatment will be effective. In other words, they should believe that the symptoms that contributed to your criminal conduct will respond to treatment.

You Waive Your Entitlement to a Speedy Trial

Per the 6th Amendment, all defendants have an entitlement to a speedy trial. However, a person who wants pretrial diversion should waive this entitlement.

An exemption is an accused person who cannot give an intelligent and knowing waiver due to their mental state. In this case, the individual is an ideal candidate for the pretrial program instead of commitment; the judge can order mental health diversion without the waiver.

You Agree to the Treatment

You should agree to abide by the mental health treatment as the program's condition.

You Do Not Pose a Risk to Your Community

It would help if you also convinced the judge that you do not pose a risk of threat to yourself or public safety. The judge will consider the factors below:

  • The seriousness of the alleged crime
  • Your history of violence or criminal history
  • A trained mental health professional's opinion
  • Your criminal defense lawyer's opinion
  • The district attorney's opinion

Please note that the judge cannot place you into the diversion program if you are charged with the following:

  • Voluntary manslaughter or murder
  • A crime that requires you to register as a sex offender under PC 290
  • Lascivious or lewd conduct with a child below 14
  • Rape
  • DUI (driving under the influence) with injury
  • A gun crime
  • A drug crime
  • Child pornography
  • Assault intending to commit oral copulation, sodomy, or rape
  • Constant sexual abuse of a minor

Upon request, the court can conduct a hearing to determine whether restitution is owed to any victims due to diverted crime. If owed, the court will require you to make the payment during your diversion period. Nevertheless, your inability to pay restitution due to your mental disorder or poverty cannot be a basis for denial of diversion.

Measuring the Progress of Your Treatment

The provider of the program in which you are placed should offer regular reports of your treatment progress to your defense lawyer, the court, and the prosecution.

If specific triggering instances happen, the judge will schedule a court hearing to check:

  • Whether your treatment program ought to be modified,
  • Whether you should be conserved and referred to the conservatorship investigator of the county of commitment to your conservatorship proceedings
  • Whether the court must reinstate the criminal proceeding

Circumstances that can trigger the hearing include:

  • You are charged with another misdemeanor crime that indicates a tendency for violence
  • You committed another felony
  • You engaged in a criminal act that makes you unsuitable for mental health diversion.
  • Your mental health professional advises the judge that you are severely disabled or your performance in your assigned mental health treatment is unsatisfactory.

Before holding the court hearing, the judge will notify you, your defense lawyer, and the prosecutor.

Where You Can Receive Treatment and Diversion Program Payment

Generally, the mental health treatment payment can originate from public or private funds. Nevertheless, a private healthcare facility will require you to have enough financial resources or carry health insurance to cover your costs.

 The judge can refer you to an existing collaborative court or a county mental health entity if you cannot raise the amount.

However, you can only avail yourself for the program if:

  • There are resources for which you qualify
  • The designed agency has agreed to take responsibility for your treatment

A collaborative court is a court-imposed model that helps the court team build long-lasting partnerships of community-offered services involving the county government and the Board of Supervisors and Superior Court administration.

If you are placed in a collaborative court, judicial officers who oversee your treatment progress via regular court proceedings will supervise you. The judge has the discretion to use sanctions and incentives to monitor you during the treatment program.

Collaborative courts are designed to offer people facing complicated mental diseases access to mental health and substance abuse treatment programs through state entities that offer:

  • Vocational and academic programs
  • Housing
  • Social service for defendants and their loved ones

The goal is for you to make an effective re-entry into your community.

Successfully Completion of the Pretrial Diversion Can Seal Your Criminal Record

If you complete your diversion program, the court will dismiss your criminal charges and seal your arrest record. Once the court dismisses the criminal charges, the clerk of the court will bring a record with the DOJ showing your case disposition.

You are deemed to have completed your diversion program when if you satisfied these requirements:

  • There is proof that you adhered to your diversion program requirements
  • There is a reasonable plan for you to obtain long-term treatment and care
  • You did not violate any law not related to your mental health disease

If you seal your case, your arrest records will not show up in any background check. That means you can answer all questions regarding your criminal history that you were not diverted for a crime or arrested. It increases the possibility of securing future educational, employment, or housing opportunities.

However, the following can use your sealed criminal record and any records of involvement in diversion:

  • You should reveal your arrest if you apply to be a peace officer. Moreover, the Department of Justice (DOJ) will disclose your arrest regarding the application.
  • The court can use your records when deciding whether to grant the diversion in future criminal charges against you
  • A criminal justice agency can access and use a sealed criminal record in the course of its official duties
  • Your records can be used to offer you continued treatment and care

Sealing your criminal record does not stop the immigration court from using it. However, a person will not face any immigration consequences from the program provided:

  • The defendant did not plead guilty to an inadmissible or deportable offense, and
  • They failed to admit any facts that are critical elements of the crime

As an immigrant, you should talk to a competent defense lawyer before engaging in a pretrial diversion program. Also, do not plead guilty to an offense without comprehending the immigration impact.

What Occurs When You Fail to Complete the Program?

If you fail to complete your pretrial diversion program, your case will be resent to the California criminal justice system. The DA will reopen the case, and law enforcers will resume prosecuting it.

If you plead guilty, the case will return to the sentencing phase. Since you plead guilty to participating in the diversion, you will not raise any legal strategies and defenses to fight the charges against you.

How SB 215 Differs from Penal Code Section 1001.36

SB 215 is another California mental health pretrial diversion law granted to defendants living with a mental disorder accused of committing California felonies or misdemeanors. It will allow the defendant to undergo mental health treatment.

While SB 215 is essentially similar to Penal Code Section 1001.36 PC, the two laws have the following significant differences:

  • Penal Code Section 1001.82 will allow mental health pretrial diversion for crimes that carry a county jail sentence. That means you will not qualify for the diversion if prosecuted with a California felony that requires you to spend time in state prison.
  • Diversion under 1001.82 will be unavailable in specific felony crimes unless the prosecution consents. These felonies include:
  1. Joyriding (VC 10851)
  2. Manslaughter
  3. Drug offenses
  4. Gun offenses
  5. Child pornography
  6. DUI causing injury (VC 23253)

Proving Your Need for a Mental Health Diversion

Below are some of the records your expert witness and defense lawyer will require before giving their opinion on the case.


It involves records that your attorney will request the prosecutor to provide because the lawyer believes they matter to the criminal case. It can include:

  • Cell phone records
  • Forensic report
  • Medical records
  • Lab reports
  • Business records
  • Surveillance videos
  • Body-worn camera video
  • 911 calls
  • Police reports
  • Your video and audio recordings
  • Witness statements
  • Medical Records

It includes records of your illness, diagnosis, treatment, and hospitalization you have previously had. Additionally, it is essential to tell your lawyer if you previously had head injuries treatment or an ailment that affected your mental functioning or brain.

It is a lengthy and overwhelming process. Your lawyer should gather medical records covering your entire life. The records can come from several medical providers, federal or state governments, or even overseas. Please ensure you tell your attorney where to gather evidence. It speeds up the process.

Mental Health Record

It is almost impossible for you to be eligible for mental health diversion unless you submit your mental health history to the court. It also includes records following committing the offense.

You can find records from professionals you have consulted about the condition, including:

  • Outpatient or inpatient mental health experts
  • Family counselors
  • Therapists
  • Parole or probation officers
  • Social workers
  • Psychologists
  • Psychiatrists

You can also find these records in jails, prisons, Veterans' Administration, and Social Security. It will help if you are honest and thorough with your criminal defense lawyer.

Educational Records

School records can also help support the request for the diversion program. The records help the prosecution or judge understand your grades and your behavior in school.

Generally, school records have evidence and reports supporting conditions that developed or were diagnosed early. Most mental health diseases start manifesting when a person is still young.

Ensure you tell your attorney when and where you attended educational institutions, from preschool to college.

Your Employment Records

Your lawyer can also use employment records to prove your mental issue. They will look for the following:

  • Did the mental health concern make it challenging for you to maintain employment?
  • Did the mental issue manifest in the workplace?
  • What motivated you to work hard?
  • Your job performance

Ensure you give your lawyer lists of all previous workplaces and why you left.

Expert Witness in California Pretrial Diversion Programs

Most criminal cases require an expert witness to help the accused person build the defense. For instance, if the defendant wants to prove their whereabouts during the commission of the crime using cell phone GPS data, they can use a forensic phone expert who will read the phone records.

When it comes to mental health diversion, you will require social workers, investigators, pharmacists, psychologists, and psychiatrists who will gather evidence and present it to court. The professionals will give opinions on whether you suffer from mental health disease, the medical terms for the disease, whether the condition can be treated, and whether you had the condition when you committed the offense.

If any of these professionals offer negative opinions, you will not qualify for the pretrial diversion. Ensure you have the right team of professionals experienced and trained to give expert opinions on your mental health issue.

When your lawyer consults with them, they will do the following:

  • They will first review your medical records, mental health records, and the case relevant records like police reports
  • Then they will interview you. Sometimes, it can be a one-time interview. It can also take several days, depending on your condition and the case's complexity.
  • The expert witness will speak with fact witnesses like your friends and relatives.
  • The expert can also perform a psychological or educational test. The test helps the professional conclude about your condition, progress, and the way forward.
  • Finally, the expert witness will draft a report outlining whether your psychological condition fits the pretrial diversion, whether it caused the crime, and is treatable.

Find Skilled Legal Representation Near Me

The compassionate legal team at Riverside Criminal Defense Attorney Law Firm understands that millions of people have mental health conditions. Sometimes mental disorders can contribute to poor decision-making and judgment, resulting in criminal charges. Fortunately, California PC 1001.36 allows qualified persons suffering from psychological conditions to engage in a diversion program where they receive treatment in place of serving time.

Our lawyers are conversant in the law and are ready to discuss your eligibility. Call us at 951-946-6366 for your initial and confidential consultation. We can listen to your concerns and legal needs, review the case, develop the best legal strategies, and advise you on the available options, including our assessment of your eligibility for the diversion.