Facing criminal charges in California while battling a mental health condition is overwhelming. PC 1001.36 offers a lifeline, pausing prosecution for treatment. Know what it is, who qualifies, and how it is applied in cases. Discover how recent 2026 legal updates make it easier to secure treatment, reduce charges, or dismiss your case entirely.
Key Takeaways:
- Pre-Plea Dismissal Pathway: PC 1001.36 pauses prosecution for mental health treatment, allowing successful participants to have criminal charges completely dismissed
- Favorable Burden Shift: New 2026 rules presume a connection between your diagnosis and the offense, forcing prosecutors to prove otherwise
- Shortened Misdemeanor Timelines: Legislation caps misdemeanor diversion at one year, while felony diversion paths remain up to two years long
For defendants facing criminal charges in California, PC 1001.36 is an important statute. You need to strategize your defense against the prosecution during court proceedings. And for that, you will need to know how this penal code can help you either reduce your charges or dismiss your case.
This blog will explain what mental health diversion is in California, its eligibility criteria, what conditions qualify, and how the process works. We will also cover how the 2026 changes in the penal code will affect defendants.
What is Mental Health Diversion Under PC 1001.36?
Mental health diversion is the pretrial diversion that pauses prosecution for treatment instead of conviction. It does not need an admission of guilt because of the pre-plea nature, and if the outcome is successful, the case can be dismissed. You can also request that your arrest record be sealed or restricted.
Who Qualifies Under PC 1001.36? The Two-Part Eligibility Test
Here are the two parts that determine your eligibility:
- Part 1: You need to have a qualifying mental disorder as per the DSM-5 diagnosis.
- Part 2: There should be a nexus; your mental disorder must be a significant factor in the offense.
Furthermore, there is also the 2026 burden shift, where presumption now favors the defendant once the diagnosis is established. Here are the qualifying and non-qualifying conditions.
| Category |
Examples |
| Generally Qualifying Disorders (DSM-5 diagnosed) |
|
| Diagnosis Requirements |
|
| Generally Non-Qualifying Conditions | Conditions arising solely from:
|
| Nexus Requirement | A qualifying diagnosis alone is not enough; the disorder must have been a significant factor in the commission of the charged offense |
Table 1: Qualification vs. Non-Qualification Under PC 1001.36
The 6 Statutory Requirements Courts Must Find
These requirements are used for determining suitability in the case, which is different from determining basic eligibility.
| # | Requirement | Plain-English Meaning |
| 1 | Qualifying mental disorder diagnosis | Defendant has a DSM-5 recognized disorder, diagnosed by a qualified expert within the past years |
| 2 | Significant nexus to the offense | The disorder played a significant role in the commission of the charged crime (presumed true unless prosecution disproves it with clear and convincing evidence) |
| 3 | Symptoms would respond to treatment | A qualified expert opines that the defendant’s symptoms would respond to mental health treatment |
| 4 | Defendant agrees to comply with treatment | Defendant consents to the proposed treatment plan as a condition of diversion |
| 5 | Waiver of speedy trial rights | Defendant agrees to waive the right to a speedy trial while diversion is pending |
| 6 | No unreasonable public safety risk | The court must find that the defendant would not pose an unreasonable risk of danger to public safety if treated in the community |
Table 2: The Six Statutory Criteria Courts Must Find Under PC 1001.36(b)
What Crimes are Excluded from Mental Health Diversion?
While most misdemeanors and many felonies remain eligible for mental health diversion, defendants might not be placed in a diversion program if they are involved in:
(1) Murder or voluntary manslaughter
(2) Rape
(3) Lewd or lascivious act on a child under 14 years of age
(4) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except when Section 314 is violated
(5) Assault with intent to commit rape, sodomy, or oral copulation, violating Section 220
(6) A violation of subdivision (b) or (c) of Section 11418
(7) Continuous sexual abuse of a child, violating Section 288.5
(8) Commission of rape or sexual penetration jointly with another person, violating Section 264.1
How the Process Works for Mental Health Diversion Cases
Here’s how a typical trial proceeds when the defense counsel files for diversion with a proposed treatment plan under PC 1001.36.
- Court reviews the diagnosis, medical records, arrest reports, and an expert evaluates it
- Prosecution might contest nexus that must meet clear-and-convincing standards
- Court holds suitability hearing
- If diversion is granted, the defendant pleads not guilty and waives a speedy trial
- Treatment period begins (outpatient/inpatient) with private insurance or county mental health services; periodic progress reports are filed with court
- If defendant completes treatment, charges can be dismissed; otherwise, criminal proceedings resume
2026 Changes – What’s New for Mental Health Diversion in California?
Here’s what changed in 2026 for the regulations under mental health diversion in California.
| Issue | Prior Law |
2025–2026 Update |
| Misdemeanor diversion term length | Up to 2 years | Shortened to a maximum of 1 year (felony diversion remains up to 2 years) according to SB 1223, Chapter 735 |
| Burden of proof on the offense-disorder “nexus” | Defense had to affirmatively prove the connection between the disorder and the offense |
|
| Judicial discretion to grant diversion | Courts generally must grant diversion if statutory requirements are met (with limited exclusions) | AB 46 proposes adjustments to how much discretion judges retain, which is worth monitoring through 2026 |
| Veterans and incompetency-related diversion pathways | More limited referral protocols |
|
Table 3: Before vs. After — Key 2026 Changes Affecting PC 1001.36 Diversion
If You are In Need, DCD LAW Can Help Build Your Mental Health Diversion Case
From gathering medical records, securing expert evaluation, to drafting the treatment plan motion, and representing you in court, we handle everything. If you are not sure about how the PC 1001.36 statute can be used as a defense, consult DCD LAW today! Call us at (818) 740-5582.
Frequently Asked Questions
1. Does a PC 1001.36 Diversion Require Me to Stay in a Locked Psychiatric Facility or Hospital?
No. Treatment can be inpatient or outpatient, allowing you to live at home while attending mandatory therapy and counseling programs.
2. What Happens to My Gun Ownership Rights if I Complete a California Mental Health Diversion?
Federal or state laws may still restrict firearm possession depending on your underlying diagnosis or the initial felony charges filed.
3. Who Pays for the Court-ordered Mental Health Treatment Plan During the Diversion Period?
The defendant covers costs through private insurance, though public county mental health services are available for those who qualify financially.
4. Can I Apply for Mental Health Diversion if I Am Currently Out on Bail or OR Release?
Yes. You can request pretrial diversion at any point before your trial begins or a plea is officially entered.
