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PC — Penal CodeWobbler

California Penal Code §1001.36 — Mental Health Diversion

PC §1001.36 authorizes pretrial mental health diversion for defendants suffering from a qualifying DSM-5-TR mental disorder — including bipolar disorder, schizophrenia, PTSD, and major depressive disorder — where the disorder was a significant factor in the offense. Successful completion (up to 2 years) results in dismissal and sealing under §1001.36(h).

Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney · Mental Health Diversion Cases in All LA County Courts

01 — Quick Facts

PC §1001.36 — Mental Health Diversion at a Glance

FactDetail
Full NameCalifornia Penal Code §1001.36 — Mental Health Diversion
Code TypePenal Code (PC)
ClassificationPretrial diversion statute (misdemeanor + most felony)
Diversion LengthUp to 1 year (misdemeanor) or 2 years (felony)
Outcome on SuccessDismissal + arrest-record sealing under §1001.36(h)
Eligible DisordersAny current DSM-5-TR diagnosis except antisocial PD, borderline PD, pedophilia
Excluded Offenses§187 murder, §667.61 One-Strike sex offenses, §288 lewd act on child under 14, §11418 WMD
Key Amendment (2023)SB 1223 restructured eligibility — court MUST grant if presumption met
Standard of ProofPreponderance of the evidence
Discovery to DAMental health records shared only with treatment provider — not DA
RestitutionFull restitution required as diversion condition
If ChargedCall (213) 723-2337 immediately

01 — What Is PC §1001.36?

What Is California Penal Code §1001.36?

PC §1001.36 Reads:

"On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant if the defendant satisfies the eligibility requirements ... and the court determines that the defendant is suitable for that diversion."

— California Penal Code §1001.36(a)

§1001.36 is one of California's most powerful post-conviction-avoidance tools. Introduced by AB 1810 (2018) and dramatically expanded by SB 1223 (2023), it lets a court suspend criminal proceedings and place a mentally disordered defendant into a court-approved treatment program. If treatment succeeds, the case is dismissed and the arrest sealed — as though the offense never occurred.

SB 1223 Presumption (2023)

Under SB 1223 amendments, the court presumes eligibility once (1) a qualifying diagnosis is shown and (2) the disorder was a significant factor in the offense. The prosecution then bears the burden of rebutting suitability. This shifted the statute from discretionary to substantially mandatory for eligible defendants.

02 — Elements of the Crime

Elements the Prosecution Must Prove Under PC §1001.36

Defendant must satisfy six eligibility criteria under §1001.36(b).

01

Qualifying DSM Diagnosis

Current diagnosis of a DSM-5-TR mental disorder, established by a qualified mental health expert.

Defense angle: Retain a forensic psychologist or psychiatrist early — DSM diagnosis must be current and documented.
02

Significant Factor in Offense

The disorder was a significant factor in the commission of the offense.

Defense angle: Post-SB 1223: if a defense expert opines nexus, the burden shifts to the DA to rebut.
03

Treatable Condition

In the expert's opinion, defendant's symptoms would respond to mental health treatment.

Defense angle: Treatment plan and provider identification are prerequisites — pretrial planning is essential.
04

Consent to Diversion

Defendant consents to diversion and waives speedy-trial rights.

Defense angle: Client must be advised of restitution, treatment length, and consequences of noncompletion.
05

Agreement to Treatment

Defendant agrees to comply with the treatment plan.

Defense angle: Noncompletion returns the case to normal prosecution — advise realistic assessment of capacity.
06

Not Unreasonable Public Safety Risk

Diversion will not pose an unreasonable risk of danger to public safety.

Defense angle: Rebuttable — treatment plan intensity and secured placement address public-safety concerns.

04 — Penalties

Penalties for PC §1001.36 Mental Health Diversion in California

§1001.36 replaces standard penalties with treatment and results in dismissal.

ChargeCodePrison TermProbationStrike
Misdemeanor DiversionPC §1001.36 (misdo)Up to 1 year diversion + treatment; dismissal on completionReplaced by diversionN/A
Felony DiversionPC §1001.36 (felony)Up to 2 years diversion + treatment; dismissal on completionReplaced by diversionN/A
NoncompletionPC §1001.36(f)Diversion revoked — case returns to normal prosecutionStandardPer underlying charge

Sentencing Enhancements

SB 1223 Presumption

PC §1001.36(b)(3)

Court presumes the disorder was a significant factor when the defense expert so opines — DA must rebut.

Restitution Requirement

PC §1001.36(c)(1)

Full victim restitution is a mandatory diversion condition.

Record Sealing

PC §1001.36(h)

Successful completion seals the arrest record — deemed never to have occurred for most purposes.

Additional Consequences Beyond Prison

  • No conviction on record — arrest sealed on completion
  • No PC §290 registration (successful completion)
  • No immigration conviction (§1001.36 dismissal is not a 'conviction' under 8 U.S.C. §1101(a)(48))
  • No firearm bar from the underlying charge (successful completion)
  • Professional-licensing consequences typically avoided

05 — Defense Strategies

How Rubin Law Defends PC §1001.36 Mental Health Diversion Charges

§1001.36 is offense-side and outcome-side strategy — not element defense.

Expert-Driven Eligibility Motion

Retain a forensic mental-health expert (psychiatrist / neuropsychologist) to document diagnosis, nexus to offense, and treatment plan.

Expert

SB 1223 Presumption Argument

Once expert nexus opinion is filed, the burden shifts to the DA to rebut the significant-factor presumption.

SB 1223

Public-Safety Rebuttal Package

Secured residential placement, medication compliance monitoring, and step-down plan neutralize the public-safety objection.

Safety

Combined With Other Diversion Tracks

For sex-offense-adjacent conduct, consider §1001.95 misdo diversion or §1000 drug diversion as parallel or fallback tracks.

Track

Failure-to-Comply Litigation

Where a diversion violation is alleged, contest the alleged noncompletion or seek reinstatement under §1001.36(f)(2).

Revocation

07 — Court Process

How PC §1001.36 Mental Health Diversion Cases Move Through Los Angeles Courts

§1001.36 diversion requires early expert engagement and structured motion practice.

  1. 1

    Step 1 — Case Screening

    Attorney reviews charges, criminal history, and mental-health treatment history to gauge eligibility.

  2. 2

    Step 2 — Expert Retention

    Forensic psychiatrist / psychologist retained to establish diagnosis and nexus opinion.

  3. 3

    Step 3 — Diversion Motion Filed

    §1001.36 motion filed with supporting expert report and proposed treatment plan.

  4. 4

    Step 4 — Hearing on Eligibility

    Court considers expert report, DA's rebuttal, and public-safety analysis.

  5. 5

    Step 5 — Diversion Ordered

    Court suspends proceedings, orders treatment, sets progress hearings (typically 6-month intervals).

  6. 6

    Step 6 — Completion & Dismissal

    Successful completion → charge dismissed and record sealed under §1001.36(h).

Reviewed by Your Attorney

Daniel S. Rubin — Los Angeles Mental Health Diversion Defense Attorney

Daniel S. Rubin has defended clients charged with mental health diversion and related offenses in Los Angeles County courts — including Clara Shortridge Foltz, Van Nuys, Compton, and Pomona. He understands that these cases are won in the details: the suppression hearing that eliminates key evidence, the preliminary hearing cross-examination that exposes a weak witness, the penalty phase argument that keeps a client out of the worst outcome.

This page was written and reviewed by Daniel A. Rubin, Los Angeles criminal defense attorney, CA State Bar 302093, with 10+ years of experience defending clients charged under PC §1001.36 in Los Angeles County. Last reviewed: July 2026.

CA Bar 302093 | Whittier Law School | Rising Star — Super Lawyers 2019–2023 | Mental Health Diversion Cases Throughout LA County

See our full Mental Health Diversion defense practice

09 — FAQs

PC §1001.36 Mental Health Diversion Questions — Los Angeles

What offenses are excluded from PC §1001.36?

Murder (§187/§189), voluntary manslaughter (§192(a)), §667.61 One-Strike offenses, §288 lewd act on child under 14, weapons of mass destruction (§11418), and rape/forcible sex offenses (§261/§289(a) when victim under 14). Most other misdemeanors and felonies are eligible.

Does the DA see my mental health records?

No. Under §1001.36(b)(2), mental-health records are shared with the treatment provider and court — not the prosecutor's file.

How long does §1001.36 diversion last?

Up to 1 year for misdemeanors, up to 2 years for felonies. Progress hearings typically occur every 6 months.

What happens if I don't complete treatment?

Under §1001.36(f), the court may reinstate the criminal proceedings. Reinstatement is not automatic — reinstatement or continuation is at the court's discretion after a violation hearing.

Available 24/7 — Free Consultation

Facing Charges With a Mental Health History?

§1001.36 is Rubin Law's core diversion practice — expert-driven motions with dismissal outcomes. (213) 723-2337.