Courtrooms are built to answer one question: did you commit the offense? They are not built to treat bipolar disorder, PTSD, or schizophrenia. California's mental health diversion law, Penal Code section 1001.36, recognizes that punishing an untreated disorder does not make anyone safer. It lets a judge pause a criminal case — felony or misdemeanor — and replace prosecution with a structured treatment program. Complete the program, and the charges are dismissed and the arrest record is sealed.
Mental health diversion offers something few defenses can — a dismissal and a sealed record without a plea — but it is demanding to litigate. It requires clinical evidence, a real treatment plan, and a motion that connects your diagnosis to the conduct charged. Marc Kohnen has defended San Diego criminal cases since 2008 and handles these motions personally, working with clinicians to build the record the court needs to see.
What Is Mental Health Diversion Under PC 1001.36?
PC 1001.36 authorizes pretrial diversion for defendants who suffer from a qualifying mental health disorder. When the court grants diversion, criminal proceedings stop. You enter treatment — inpatient or outpatient, public or private — under a plan the court approves, with regular progress reports back to the judge. Treatment can last up to two years in a felony case and up to one year in a misdemeanor case.
To grant diversion, the court must be satisfied of several things: that you have a qualifying diagnosis, that the disorder was a significant factor in the charged offense, that a qualified expert believes your symptoms would respond to treatment, that you consent and agree to comply with treatment, and that you do not pose an unreasonable risk of danger to public safety as the statute defines it. Each element is a place where a prepared defense matters.
The 2023 Amendments: A Presumption That Works in Your Favor
When the law first passed in 2018, defendants had to prove their disorder was a significant factor in the offense. Amendments effective in 2023 flipped that burden in many cases. Now, if you were diagnosed with a qualifying disorder within the last five years, the court must presume the disorder was a significant factor in the offense. The prosecution can only defeat that presumption with clear and convincing evidence that the disorder did not contribute.
That change matters enormously in practice. If your diagnosis is recent and documented, a large piece of the motion is presumed in your favor before the hearing starts. Part of Marc's work in these cases is gathering the treatment records, evaluations, and clinician statements that put the presumption squarely on the table.
Which Diagnoses Qualify for Mental Health Diversion?
The statute reaches nearly any mental health disorder identified in the DSM-5, the diagnostic manual used by mental health professionals. Qualifying conditions commonly seen in San Diego diversion motions include:
- Bipolar disorder
- Post-traumatic stress disorder (PTSD)
- Schizophrenia and schizoaffective disorder
- Major depressive disorder
- Anxiety and other DSM-5 disorders supported by a clinical evaluation
Two diagnoses are excluded by the statute: antisocial personality disorder and pedophilia. A defendant whose only diagnosis is one of these cannot use mental health diversion. Beyond those exclusions, the question is clinical — which is why the evaluation, discussed below, carries so much weight.
Which Charges Are Eligible — Felonies and Misdemeanors
Unlike judicial diversion under PC 1001.95, which is limited to misdemeanors, mental health diversion covers both misdemeanors and most felonies. That makes it one of the few paths to a full dismissal in a serious felony case. The statute does exclude certain charges outright: murder and voluntary manslaughter cannot be diverted, and neither can most offenses that would require sex offender registration under Penal Code 290.
For everything else — theft, assault, drug charges, vandalism, criminal threats, and many other felonies and misdemeanors filed in San Diego County — eligibility turns on your diagnosis and the court's assessment, not on a list of forbidden charges.
The Clinical Evaluation Process
A mental health diversion motion rises or falls on the clinical record. The court needs an evaluation from a qualified mental health expert covering your diagnosis, the connection between the disorder and the offense, and your likelihood of responding to treatment. In San Diego, that usually means a psychologist or psychiatrist reviews your history, interviews you, examines the police reports, and writes a report the court can rely on.
The defense controls how that record is built. Marc works with respected local clinicians, makes sure the evaluation addresses each statutory element, and pairs it with a treatment plan that names the provider, the modality, and the schedule. Judges grant diversion when they can see exactly what treatment will happen and who will report back to the court.
What Completing Diversion Earns You
If you perform satisfactorily in treatment — attending, complying, and avoiding new law violations that would disqualify you — the court dismisses the charges at the end of the program. The arrest is deemed never to have occurred, and the court orders the record sealed. For nearly all purposes, including most employment and housing applications, you may respond as though the arrest never happened. The statute preserves narrow exceptions, such as peace officer applications.
Just as important, diversion happens before conviction. There is no guilty plea to explain later, no probation term, and no conviction to expunge. The case ends, and the treatment relationship you built during the program continues if you want it to.
Mental Health Diversion and Competency Proceedings
Mental health diversion also intersects with competency law. When a defendant is found incompetent to stand trial, the case normally detours into restoration proceedings. The statutes now allow courts to consider mental health diversion as a resolution in many of these cases — moving a defendant into community treatment instead of a lengthy competency process. For families watching a loved one cycle between jail and the state hospital system, this pathway can change everything, and it takes an attorney who knows both bodies of law to present it.
Behavioral Health Treatment Courts in San Diego
San Diego County has invested in treatment-based alternatives for years, operating behavioral health court programs that supervise defendants with serious mental illness through coordinated treatment instead of ordinary prosecution. That local infrastructure matters for a PC 1001.36 motion: judges here are familiar with supervised treatment, county behavioral health services and community providers are available to anchor a plan, and probation and the courts have experience monitoring clinical progress.
Familiarity does not mean automatic approval. San Diego judges scrutinize the risk-to-public-safety element and the credibility of the treatment plan. The motions that succeed are specific, documented, and honest about what treatment will involve.
If you or someone you love is facing charges in San Diego and a mental health disorder is part of the story, mental health diversion may be the way the case ends without a conviction. Call Marc Kohnen at (619) 398-2500 for a free, confidential consultation. Bring whatever treatment history you have — the sooner the clinical picture is on the table, the more he can do with it.
Legally reviewed by Marc S. Kohnen, Attorney at Law — State Bar of California #255303, defending San Diego since 2008.
Free, confidential case evaluation — available 24 hours at (619) 398-2500.