Facing criminal charges is never easy, and a core assumption of the American justice system is that punishment deters crime. In some cases, however, the person accused of a crime may not have had the capacity to fully understand, or even control, their actions. This is especially true for people living with serious mental health conditions, developmental disabilities, traumatic brain injuries, or post-traumatic stress disorder, including veterans whose conditions stem from military service.
For these individuals, prison can do far more harm than good. Recognizing this, California created a mental health diversion program under Penal Code section 1001.36, which allows eligible defendants to receive treatment instead of prosecution. Upon successful completion, the charges are dismissed entirely. Anyone in this situation should speak with an experienced criminal defense attorney as early in the case as possible, because diversion must be requested before trial.
How California’s Mental Health Diversion Program Works
Mental health diversion is a pre-plea form of pretrial diversion. If a judge grants it, the criminal case is paused for up to two years in felony cases (up to one year for misdemeanors) while the defendant completes a court-approved inpatient or outpatient treatment plan. Because it is pre-plea, the defendant does not have to admit guilt or enter a plea to participate.
If the defendant substantially complies with treatment, avoids significant new violations of the law, and has a long-term care plan in place, the court dismisses the charges. The arrest is then treated as if it never occurred, and the records of the arrest and prosecution are sealed for most purposes, a benefit similar to, and in some ways stronger than, a traditional California expungement.
Who Qualifies for Mental Health Diversion?
Under the current version of the statute, a defendant is eligible if they have been diagnosed within the last five years, by a qualified mental health expert, with a mental disorder identified in the DSM. Qualifying conditions include, but are not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, PTSD, and major depression. Only two diagnoses are categorically excluded: antisocial personality disorder and pedophilia.
Importantly, since Senate Bill 1223 took effect in 2023, the court must presume that the defendant’s disorder was a significant factor in the offense unless the prosecution shows, by clear and convincing evidence, that it was not a motivating, causal, or contributing factor. This shifted the practical burden in the defendant’s favor and made diversion accessible to far more people.
Beyond the diagnosis, the court must also find the defendant suitable for diversion:
- A qualified mental health expert believes the defendant’s symptoms would respond to treatment;
- The defendant consents to diversion and waives the right to a speedy trial;
- The defendant agrees to comply with treatment as a condition of diversion; and
- The defendant will not pose an unreasonable risk of danger to public safety if treated in the community.
Both misdemeanors and felonies can qualify, and even some violent felonies, such as assault with a deadly weapon, are not automatically excluded when the psychiatric evidence is strong. Judges retain discretion, and the district attorney may oppose the motion, which is why the quality of the psychiatric evaluation, treatment plan, and legal argument matters enormously.
Which Crimes Are Excluded?
When the program was first enacted in 2018, prosecutors objected that it applied to virtually any charge, including murder and rape, and lobbied the Legislature to narrow it. They largely succeeded. Later that same year, Senate Bill 215 amended the statute to make defendants charged with certain serious offenses ineligible, including:
- Murder and voluntary manslaughter;
- Rape and other offenses requiring sex offender registration (with limited exceptions);
- Lewd or lascivious acts on a child under 14;
- Assault with intent to commit rape, sodomy, or oral copulation;
- Continuous sexual abuse of a child; and
- Use of a weapon of mass destruction.
For any charge outside this exclusion list, diversion remains on the table if the eligibility and suitability requirements are met.
How the Law Has Changed Since 2018
Mental health diversion has been one of the most actively litigated and amended areas of California criminal procedure. Key developments include:
- AB 1810 (2018): Created the mental health diversion program as part of a budget trailer bill, initially covering nearly all charges and diagnoses.
- SB 215 (2018): Responded to prosecutor concerns by excluding murder, rape, and other serious offenses listed above.
- People v. Frahs (2020): The California Supreme Court held the statute applies retroactively to cases not yet final on appeal.
- SB 1223 (effective 2023): Expanded eligibility to nearly all DSM diagnoses, created the presumption that the disorder was a significant factor in the offense, and shortened misdemeanor diversion from two years to one.
- People v. Braden (2023): The Supreme Court clarified that diversion must be requested before trial begins or a plea is entered, so early action is critical.
- People v. Harlow (2025): A Court of Appeal confirmed that the qualifying diagnosis does not need to predate the offense. A diagnosis made after arrest, within five years of the request, still triggers the presumption of eligibility.
The Legislature continues to refine the program, so the rules in your county and courtroom may keep evolving. The full, current statutory text is available on the California Legislative Information website linked above.
Mental Health Diversion vs. Other Options
Diversion is only one of the ways mental illness intersects with the criminal justice system. It differs from an insanity plea: a defendant found not guilty by reason of insanity has gone through trial, while diversion avoids trial altogether and leaves no conviction behind.
Military veterans may also have access to a separate track through California’s veterans courts, which are designed for service-related PTSD, traumatic brain injury, and substance abuse. A knowledgeable defense attorney can evaluate which path offers the best outcome in your specific case.
Hire a Criminal Defense Attorney
If you or someone you love has been charged with a crime and struggles with a mental health condition, contact the experienced criminal defense attorneys at the Los Angeles law firm Manshoory Law Group, APC as soon as possible. Timing matters: under current law, diversion must be requested before trial, and building a persuasive motion takes a psychiatric evaluation, a credible treatment plan, and evidence connecting the diagnosis to the charged conduct.
We will use our knowledge of criminal law to devise a strategy and present the best case for your or your loved one’s defense, which can truly be the difference between a prison sentence and getting the treatment you need. Attorneys are available 24/7 to take your call. Contact us today for an initial consultation.