Facing a high-stakes legal battle can feel overwhelming, but under California Penal Code section 1001.36, can serious felony charges be completely dismissed under mental health diversion in California? The short answer is yes—even individuals facing severe, life-altering felony accusations can secure a total dismissal and have their arrest records sealed through this progressive legal pathway. However, navigating the strict statutory requirements and overcoming intense prosecutor pushback requires a sophisticated, proactive defense strategy.
If you or a loved one are trying to protect your future while dealing with a mental health condition, understanding how this law works is the first step toward reclaiming your freedom.
Pretrial mental health diversion is a legal mechanism that pauses a criminal case before a trial or plea takes place. Instead of sending a defendant through the standard, punitive court process, the judge places them into a structured, court-approved mental health treatment program. If the defendant completes the program successfully, the criminal charges are dropped entirely.
California lawmakers designed Penal Code (PC) 1001.36 to address a major crisis: the criminalization of mental illness. The goal of this statute is to treat the root cause of certain behaviors rather than simply locking individuals away in state prison. By providing access to rehabilitation, the law aims to lower public costs and reduce the chances of someone reoffending.
The best part of PC 1001.36 is the final resolution. Once you complete your treatment plan, the judge will completely dismiss your felony charges. Furthermore, the court seals the arrest record. Legally, the arrest and subsequent prosecution are deemed never to have occurred, allowing you to truthfully state on most job applications that you have never been arrested for the crime.
While the law is designed to be therapeutic, obtaining diversion is never automatic. Prosecutors frequently fight these motions, especially in heavy felony cases. They often argue that the defendant poses a danger to society or that the crime is too severe for treatment. Overcoming this resistance requires a skilled defense firm to present an airtight case to the judge.
To qualify for diversion, you must suffer from a recognized mental health disorder listed in the most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Common qualifying conditions include:
Not all mental health conditions open the door to diversion. The California statute explicitly excludes several disorders, including:
It is not enough to simply have a diagnosis. The defense must prove a clear "nexus"—meaning your mental health condition played a significant role in the commission of the alleged crime. Recent statutory updates under Senate Bill 1223 made this easier for defendants. The law now presumes a connection exists if a qualified expert confirms your disorder substantially contributed to the behavior, shifting the burden onto the prosecution to prove otherwise.
Courts generally want to see recent, reliable medical history. While older records are helpful, judges heavily scrutinize documentation from the past five years. An experienced legal team will carefully audit your medical records within this window to establish a clear, consistent history of your diagnosis.
California law explicitly bars certain egregious offenses from diversion under any circumstances. You cannot receive mental health diversion if you are charged with:
If a felony is not on the absolute exclusion list, it is legally eligible for diversion. This creates a massive "gray area" for serious or violent charges such as Robbery, First-Degree Burglary, Assault with a Deadly Weapon (ADW), and Arson. Because these crimes carry heavy prison sentences, judges are naturally hesitant to grant diversion. Winning these cases requires proving that structured treatment will keep the public entirely safe.
If you have a prior "strike" on your record, prosecutors will use it to paint you as a chronic offender. While a prior strike does not legally disqualify you from PC 1001.36 diversion for a new eligible offense, it dramatically increases judicial scrutiny. A strategic attorney must handle the prior strike carefully, sometimes filing a Romero motion to dismiss the strike for sentencing purposes to clear a smoother path toward diversion.
Even if you meet every medical and behavioral milestone, the judge holds ultimate veto power. The court must be satisfied that you do not pose a "substantial and undue risk" of committing a new, violent super-strike crime if released into community treatment.
When fighting a felony diversion motion, District Attorneys routinely rely on a specific playbook. They will focus heavily on police reports, highlight any violent details of the alleged offense, and point to past criminal history. They try to convince the judge that community-based treatment is an unsafe alternative to incarceration.
Every courthouse handles diversion motions differently. Rubin Law, P.C. brings daily courtroom experience across Los Angeles County, including the Clara Shortridge Foltz Criminal Justice Center, Van Nuys, Airport, Compton, and Inglewood courts. Attorney Daniel S. Rubin understands the local temperaments of LA County judges and prosecutors. This local insight allows the firm to tailor your diversion motion to match the specific expectations and legal standards of the judge deciding your case.
A generic request will be denied instantly. A successful motion under PC 1001.36 requires a heavy package of evidence, including:
The cornerstone of your motion is the expert declaration. Rubin Law, P.C. collaborates with trusted, credentialed forensic psychologists who know how to draft evaluations that stand up to tough cross-examination. The expert must clearly explain how your illness caused the behavior and outline exactly why you will respond well to treatment.
A judge will not release a felony defendant back into the community without a clear safety net. Your defense must present a concrete treatment program. Depending on the severity of the charge, this could mean an intensive inpatient residential facility or a highly structured Intensive Outpatient Program (IOP) that includes regular drug testing, individual therapy, and psychiatric medication management.
The most effective way to resolve a mental health case is to act before formal charges are ever filed. Rubin Law, P.C. specializes in pre-filing intervention. By stepping in immediately after an arrest, the firm can present medical evidence and a viable treatment plan to the prosecution before the arraignment date. If successful, this can convince the District Attorney to decline filing formal felony charges altogether, sparing you from entering the courtroom system entirely.
When a case involves a 5150 psychiatric hold, weapons, or severe threats, a standard outpatient plan will not suffice. For these high-stakes scenarios, the defense must build an aggressive, multi-layered treatment framework. This shows the court that your symptoms will be actively monitored and safely controlled around the clock.
The formal diversion process begins when your attorney drafts and files a comprehensive motion under Penal Code 1001.36. This motion outlines the legal arguments, details your diagnosis, and includes all supporting expert reports and medical records.
Sometimes, a mental health condition is so severe that a defendant cannot understand the court proceedings. In these situations, the court may declare them Incompetent to Stand Trial (IST). Under recent California legal reforms, courts are encouraged to use mental health diversion as a way to restore competency through treatment, allowing the defendant to heal while working toward a dismissal.
During the formal hearing, your attorney presents oral arguments to the judge, and the prosecutor responds with their objections. The judge will often ask direct questions about the expert's evaluation and the specifics of the treatment plan to ensure public safety remains intact.
At Rubin Law, P.C., a primary core focus is challenging illegal law enforcement behavior. Many criminal cases turn on whether police officers violated the Fourth Amendment. If law enforcement executed an illegal search, an unlawful traffic stop, or a defective arrest warrant, the firm moves aggressively to suppress that evidence. When the state's evidence is compromised, it gives the defense tremendous leverage to compel the prosecutor or judge to grant mental health diversion.
If the judge grants your motion, your criminal case is officially paused. For felony charges, you will enter a court-monitored treatment program that can last up to two years. You must attend all therapy sessions, take prescribed medications, and appear at periodic court progress hearings so the judge can confirm your compliance.
If you follow all rules and complete the program, your rewards are immense: the case is dismissed, and your record is sealed. However, if you stop attending treatment, fail drug screenings, or pick up a new criminal charge, the judge will terminate your diversion. Your case will return to the standard criminal court track, exposing you to the original felony penalties and prison time.
Public defenders are frequently overloaded with massive case volumes. Because of this, they often lack the time and resources required to gather extensive medical records, hire top-tier forensic experts, and build custom treatment plans. This often leaves them defaulting to standard plea bargains that carry permanent felony convictions.
In serious felony cases, waiting for the prosecution to hand over discovery or make an initial offer is a recipe for disaster. The state builds its momentum early. To defeat serious charges, your defense team must take immediate control of the narrative from day one.
Rubin Law, P.C. approaches defense differently. The firm prepares every single case as if it is heading to a full jury trial. This meticulous preparation sends a clear message to prosecutors that the firm will not accept bad deals. By pairing this aggressive trial readiness with a deep, compassionate understanding of mental health defense, attorney Daniel S. Rubin provides the high-touch advocacy necessary to turn complex felony charges into successful dismissals.
Yes. As long as the violent felony is not explicitly excluded by law (such as murder or registerable sex offenses), it is legally eligible for diversion. Charges like felony assault or robbery can be completely dismissed and sealed if the defense can prove a clear nexus to a mental illness and satisfy the judge regarding public safety.
By law, a pretrial mental health diversion program for a felony charge can last for a maximum of two years. During this timeframe, the defendant must fully comply with all court-ordered psychiatric care and monitoring.
No. The defense can file a diversion motion over the prosecutor's express objection. The ultimate decision rests entirely with the judge, which is why presenting a robust, expert-backed treatment plan directly to the court is so critical.
Yes. Upon successful completion, your felony charges are dismissed and your arrest record is sealed under Penal Code 851.91. For most private employment background checks, the arrest will no longer appear, and you can legally state you have never been arrested or prosecuted for that offense.
The "3-month rule" generally refers to local county court policies or statutory guidelines regarding swift scheduling and evaluation timelines. It ensures that mental health assessments and eligibility determinations are processed quickly so that individuals do not sit languishing in jail without access to necessary treatment.
No. Penal Code 1001.36 is strictly a pretrial diversion program. The motion must be filed and resolved before a trial concludes or before a guilty or no-contest plea is formally entered in your case.
No. California courts have consistently ruled that Vehicle Code offenses, including Driving Under the Influence (DUI), are not eligible for mental health diversion due to conflicting state statutes that strictly prohibit the diversion of DUI charges.
An involuntary 5150 hold can actually serve as powerful supporting evidence for your motion. It provides immediate, official documentation that you were experiencing a severe mental health crisis, helping your attorney firmly establish the required medical nexus to your behavior.
A serious felony accusation does not have to destroy your future, and a mental health crisis shouldn't define the rest of your life. If you or a family member are facing felony charges in Los Angeles County, do not wait for the system to dictate your outcome. Contact Rubin Law, P.C. today at (213) 943-1671 or visit rubinlawpc.com to schedule a confidential consultation. Let an aggressive, dedicated advocate protect your constitutional rights, build your treatment roadmap, and fight for the total dismissal you deserve.
About the author
Daniel A. Rubin has defended thousands of clients across Los Angeles County against felony, misdemeanor, and federal charges — from DUI and drug crimes to violent felonies and white-collar prosecutions.
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