Mental Health Diversion

crop ethnic client discussing problems with anonymous psychologist

Diversion programs are an opportunity for you to earn a dismissal of your case. To earn a dismissal, you must complete any court ordered requirements. There are a few different diversion programs with different eligibility requirements. These include Mental Health Diversion, which we will discuss below, as well as Military Diversion, Judicial Diversion, and Drug Diversion.

Mental Health Diversion focuses on treating the underlying condition that played a role in the alleged offense. Before you can be admitted todiversion, the court must find you eligible, and determine there’s no reason you are not suitable for the program.


Under Penal Code 1001.36, the court may grant Mental Health diversion if:

  1. The court is satisfied that you suffer from a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (this includes, bipolar disorder, schizophrenia, PTSD).
  2. The court is satisfied that your mental disorder was a significant factor in the commission of the charged offense.
  3. A qualified mental health expert believes that your symptoms of the mental disorder would respond to mental health treatment.
  4. You consent to diversion, waive your right to a speedy trial (the court can order diversion without consent and waiver, in situations where you are unable to consent and waive your right as a result of mental incompetence).
  5. You agree to comply with treatment as a condition of diversion; AND
  6. The court is satisfied that you will not pose an unreasonable risk of danger to public safety.

In order to meet the criteria, a qualified mental health expert will provide a recent diagnosis. A mental health expert may need to do an examination, review your medical records, arrest reports, or another other relevant evidence in order to provide a diagnosis and opinion.


While you may be eligible for Mental Health Diversion whether you are facing misdemeanor or felony charges, there are a number of charges that will make you ineligible for Mental Health Diversion. The court may not place you in the program if you are currently facing charges for any of the following offenses:

  1. Murder or voluntary manslaughter
  2. Any offense that would require you to register pursuant to PC 290, except for Penal Code Section 314 (indecent exposure).
  3. Rape
  4. Lewd or Lascivious act on a child under 14 years of age
  5. Assault with intent to commit rape, sodomy, oral copulation, in violation of Penal Code Section 220.
  6. Commission of rape or sexual penetration in concert with another person, in violation of Penal Code Section 264.1
  7. Continuous sexual abuse of a child, in violation of Penal Code 288.5
  8. A violation of Penal Code Section 11418(b) or 11418(c)

The Court Granted Mental Health Diversion, Now What?

If the court finds you eligible and suitable for mental health diversion, they will order you to follow a treatment plan to address the mental health condition that led to the crime in your case. That may include inpatient or outpatient mental health treatment. The mental health treatment provider will need to provide the court with regular progress reports during the diversion period, which can last up to two years.

If you do well in the treatment program and have a met all the requirements of court diversion program, and have a long-term mental healthcare plan, at the end of the diversion period the court will dismiss your criminal case. If you are not performing well in your programing any time during the diversion period, the court will hold a hearing to determine whether to reinstate the criminal proceedings and remove you from Mental Health Diversion.

As always, if you are facing criminal charges, you should discuss your case with an experienced criminal defense attorney. There are many different diversion programs. These include Mental Health Diversion, Military Diversion, Judicial Diversion, and Drug Diversion. We can help you determine whether you may be eligible for mental health diversion, or a different program. We will also work with you to ensure the court has all the information necessary to accept you into the appropriate diversion program.

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