Mental Health Diversion in California (Penal Code §1001.36)

In some criminal cases, untreated mental illness can play a significant role in a person’s behavior. California law allows certain defendants to receive treatment instead of incarceration when mental illness substantially contributed to the alleged offense.

This process, known as mental health diversion, is governed by California Penal Code §1001.36. The law allows courts to pause criminal proceedings so eligible defendants can participate in treatment programs addressing underlying psychological conditions.

What Is Mental Health Diversion?

Mental health diversion is a legal process allowing certain defendants with qualifying mental health conditions to participate in treatment rather than continuing through traditional prosecution.

When diversion is granted:

• Criminal proceedings are paused

• The defendant participates in treatment

• Courts monitor progress

California Penal Code §1001.36 Criteria

Courts must determine:

• A qualifying mental disorder exists

• The disorder contributed to the offense

• Symptoms are treatable

• The defendant agrees to treatment

• Community safety can be maintained

Role of Psychological Evaluation

Courts often rely on psychological evaluation to determine whether a defendant meets diversion criteria. Evaluations may assess diagnosis, relationship between symptoms and behavior, treatment responsiveness, and community safety considerations.

Offenses That May Be Eligible for Diversion

Not every criminal charge automatically qualifies for mental health diversion under Penal Code §1001.36, but the statute allows diversion in a wide range of cases when the required criteria are met.

Mental health diversion is commonly considered in cases involving:

·       Non-violent felony offenses

·       Certain property crimes

·       Drug-related offenses

·       Lower-level assault or disturbance offenses

However, the statute excludes some serious offenses, including certain violent crimes and sex offenses. Courts must also consider whether granting diversion would pose an unreasonable risk to public safety.

Because eligibility can depend on both the nature of the charge and the individual’s mental health history, attorneys often seek mental health consultation or evaluation when determining whether diversion may be appropriate.

Evidence Courts Consider

When deciding whether to grant mental health diversion, judges typically consider multiple sources of information.

These may include:

·       Psychiatric or psychological evaluations

·       Prior mental health treatment records

·       Testimony or written opinions from mental health professionals

·       Evidence regarding the defendant’s functioning before and after the alleged offense

Courts may also examine whether the individual has previously engaged in treatment and whether appropriate treatment resources are available in the community.

A structured psychological evaluation can help clarify diagnostic questions and determine whether symptoms of mental illness played a meaningful role in the alleged offense.

Length of Diversion Programs

If diversion is granted, treatment typically occurs over a court-supervised period that may last up to two years.

During this time, the defendant may be required to participate in a structured treatment plan that could include:

·       Psychiatric care

·       Medication management

·       Individual or group therapy

·       Substance use treatment when relevant

·       Community mental health services

Courts may periodically review the defendant’s progress to determine whether treatment conditions are being followed.

Failure to comply with treatment requirements may result in the court terminating diversion and reinstating criminal proceedings.

Why Psychological Evaluation Is Important

Mental health diversion requires the court to make several complex determinations, including whether a qualifying mental disorder exists and whether the disorder contributed to the alleged offense.

Psychological evaluation can assist courts by providing:

·       Diagnostic clarification

·       Assessment of symptom severity

·       Evaluation of the relationship between mental illness and behavior

·       Opinion regarding the likelihood that treatment will address the relevant symptoms

These evaluations may involve clinical interviews, psychological testing, and review of available records.

Because the legal questions differ from those addressed in therapy, diversion evaluations are typically conducted as forensic psychological assessments rather than treatment evaluations.

Limitations of Diversion

Although mental health diversion can be beneficial in appropriate cases, it is not available in every situation.

Courts may deny diversion when:

·       The offense falls within statutory exclusions

·       The defendant declines treatment

·       The individual presents a significant public safety risk

·       Adequate treatment resources are unavailable

Diversion also requires active participation in treatment, which may include compliance with medication and therapy requirements.

The Role of Mental Health Professionals

Mental health professionals may be asked to provide opinions related to diversion eligibility.

These opinions may address questions such as:

·       Whether a qualifying mental disorder is present

·       Whether symptoms substantially contributed to the alleged offense

·       Whether treatment is likely to improve the condition

·       Whether community-based treatment appears feasible

Such evaluations are intended to assist the court in making informed decisions about whether treatment-oriented alternatives to incarceration are appropriate.

Courts throughout California, including those in San Diego County, may consider mental health diversion when the statutory criteria are met.

Attorneys sometimes consult mental health professionals when evaluating whether a case may qualify for diversion or when a psychological opinion may assist the court in understanding the role of mental illness in the alleged offense.

When Defense Attorneys Consider Mental Health Diversion

Criminal defense attorneys sometimes evaluate whether mental health diversion under Penal Code §1001.36 may be appropriate when psychological factors appear to have contributed to the alleged offense.

Situations where diversion may be explored include:

·       Documented history of serious mental illness

·       Evidence that psychiatric symptoms were present at the time of the alleged offense

·       Prior mental health treatment or hospitalization

·       Behavior that appears consistent with untreated psychiatric symptoms

·       Availability of appropriate treatment resources in the community

Because the statute requires courts to determine whether a qualifying mental disorder significantly contributed to the alleged offense, mental health professionals may be asked to provide clinical opinions addressing this issue.

Consultation Regarding Psychological Evaluation

Attorneys sometimes consult with psychologists when questions arise about the role of mental illness in a legal case.

Consultation may involve discussing whether a psychological evaluation could assist the court in understanding relevant mental health issues, including those related to mental health diversion under California law.

Additional information about forensic psychological evaluations and consultation services is available on this site.

Consultation or psychological evaluation can sometimes assist attorneys in determining whether diversion may be a viable legal strategy in a particular case.

FAQ: Mental Health Diversion in California

What is Penal Code 1001.36 mental health diversion?

It is a California law allowing eligible defendants with qualifying mental disorders to participate in treatment instead of continuing through traditional criminal prosecution.

Who qualifies for mental health diversion?

Eligibility depends on the presence of a qualifying mental disorder, the disorder's role in the alleged offense, treatment responsiveness, and public safety considerations.

What are the next steps for learning mroe about mental health diversion?

Contact Dr. Ben Felleman today to schedule a free 15-minute consultation.