What is Mental Health Diversion Eligibility in California - PC 1001.36
If a mental health condition played a role in a criminal charge, California law may allow treatment instead of traditional prosecution. That option is called mental health diversion, created under California Penal Code section 1001.36. Rather than moving straight through the court system toward a conviction, an eligible defendant can pause the criminal case, complete a court-approved treatment program, and — if that treatment is successfully completed — have the charges dismissed.
It's not automatic, and it's not available to everyone. Courts look at a specific set of legal and clinical criteria before granting diversion, and a qualified psychological evaluation is central to that decision. Here's what the law actually requires.
The two threshold requirements
Before a court even considers whether diversion is appropriate, two baseline conditions have to be met.
A qualifying diagnosis. The defendant must have been diagnosed with a mental disorder identified in the DSM (Diagnostic and Statistical Manual of Mental Disorders) within the past five years, by a qualified mental health expert. The statute names bipolar disorder, schizophrenia, schizoaffective disorder, and PTSD as examples, but the list isn't limited to those. Supporting evidence can come from an examination, medical records, or arrest reports.
A causal connection to the offense. The defendant's mental disorder must have been a significant factor in the commission of the charged offense. The court is required to find that this connection exists, unless clear and convincing evidence shows otherwise.
Both conditions have to be satisfied before the court moves on to whether diversion is actually the right outcome.
The four suitability factors
Meeting the two threshold requirements doesn't guarantee diversion — the court still has to find the defendant suitable for it, based on four additional factors:
A qualified mental health expert must opine that the defendant's symptoms would respond to mental health treatment.
The defendant consents to diversion and agrees to waive their right to a speedy trial.
The defendant agrees to comply with the treatment plan.
The defendant would not pose an unreasonable risk to public safety if treated in the community.
As of 2026, courts are generally expecting more thorough documentation to support these findings — detailed medical evaluations, specific treatment recommendations, mental health history, and a concrete compliance plan — rather than a general clinical impression.
What disqualifies someone
Excluded diagnoses. The statute specifically excludes antisocial personality disorder and pedophilic disorder from the list of qualifying conditions, even though both appear in the DSM.
Excluded offenses. Diversion isn't available for certain serious charges, including murder, voluntary manslaughter, rape, lewd acts on a child under 14, assault with intent to commit rape, sex offenses requiring registration, and certain firearm-related offenses. If a charge falls into one of these categories, diversion is off the table regardless of diagnosis or treatment prospects.
Time limits. Diversion periods are capped — up to two years for felony charges, and up to one year for misdemeanors.
Where the psychological evaluation fits in
Nearly every element above depends on clinical evidence, not just legal argument: the diagnosis itself, whether it was a significant factor in the offense, whether it would respond to treatment, and whether the person poses an unreasonable risk. That's the role of a forensic psychological evaluation in a diversion case — typically built on a clinical-forensic interview, review of legal and medical records, psychological testing where appropriate, collateral interviews with family or treatment providers, and a structured risk assessment, all documented in a written report the court can rely on.
A note on this article, and next steps
This is general information about how PC 1001.36 works — not legal advice, and not an assessment of whether any particular case qualifies. Whether diversion applies to a specific situation is a legal determination for the court, made with the guidance of a criminal defense attorney.
What a psychologist can do is provide the clinical piece the court needs to make that determination: a diagnosis, an opinion on whether the disorder was a significant factor in the offense, and an assessment of treatment prospects and risk. If you or your attorney are exploring mental health diversion, Elara Clinical & Forensic Psychology conducts these evaluations across California
