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
| Fact | Detail |
|---|---|
| Full Name | California Penal Code §1001.36 — Mental Health Diversion |
| Code Type | Penal Code (PC) |
| Classification | Pretrial diversion statute (misdemeanor + most felony) |
| Diversion Length | Up to 1 year (misdemeanor) or 2 years (felony) |
| Outcome on Success | Dismissal + arrest-record sealing under §1001.36(h) |
| Eligible Disorders | Any 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 Proof | Preponderance of the evidence |
| Discovery to DA | Mental health records shared only with treatment provider — not DA |
| Restitution | Full restitution required as diversion condition |
| If Charged | Call (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.
Official Sources
02 — Elements of the Crime
Elements the Prosecution Must Prove Under PC §1001.36
Defendant must satisfy six eligibility criteria under §1001.36(b).
Qualifying DSM Diagnosis
Current diagnosis of a DSM-5-TR mental disorder, established by a qualified mental health expert.
Significant Factor in Offense
The disorder was a significant factor in the commission of the offense.
Treatable Condition
In the expert's opinion, defendant's symptoms would respond to mental health treatment.
Consent to Diversion
Defendant consents to diversion and waives speedy-trial rights.
Agreement to Treatment
Defendant agrees to comply with the treatment plan.
Not Unreasonable Public Safety Risk
Diversion will not pose an unreasonable risk of danger to public safety.
04 — Penalties
Penalties for PC §1001.36 Mental Health Diversion in California
§1001.36 replaces standard penalties with treatment and results in dismissal.
| Charge | Code | Prison Term | Probation | Strike |
|---|---|---|---|---|
| Misdemeanor Diversion | PC §1001.36 (misdo) | Up to 1 year diversion + treatment; dismissal on completion | Replaced by diversion | N/A |
| Felony Diversion | PC §1001.36 (felony) | Up to 2 years diversion + treatment; dismissal on completion | Replaced by diversion | N/A |
| Noncompletion | PC §1001.36(f) | Diversion revoked — case returns to normal prosecution | Standard | Per 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
Sentencing References
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
Constitutional Sources
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
Step 1 — Case Screening
Attorney reviews charges, criminal history, and mental-health treatment history to gauge eligibility.
- 2
Step 2 — Expert Retention
Forensic psychiatrist / psychologist retained to establish diagnosis and nexus opinion.
- 3
Step 3 — Diversion Motion Filed
§1001.36 motion filed with supporting expert report and proposed treatment plan.
- 4
Step 4 — Hearing on Eligibility
Court considers expert report, DA's rebuttal, and public-safety analysis.
- 5
Step 5 — Diversion Ordered
Court suspends proceedings, orders treatment, sets progress hearings (typically 6-month intervals).
- 6
Step 6 — Completion & Dismissal
Successful completion → charge dismissed and record sealed under §1001.36(h).
Los Angeles Courts That Handle PC §1001.36 Mental Health Diversion Cases
§1001.36 motions are heard at every LA County criminal calendar.
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
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.