The mental health diversion statute (Penal Code section 1001.36) was amended in the 2021-2022 Legislative Session to encourage the courts to make use of mental health diversion.  The amended law became effective on January 1 of this year.

Penal Code section 1001.36 was enacted in 2018 to address the fact that many defendants who cycle through the criminal justice system suffer from a mental illness or disorder. The purpose of the statute was to allow these defendants to petition the court to divert adjudication of their criminal case and allow the defendant to enter a regimented treatment program, as ordered by the court. Not all offenses are eligible and not all mental disorders will qualify, but the statute is broad and includes many mental disorders and crimes.  If the treatment is successful, the court will dismiss the charges against the defendant.

The law recognizes that often crimes are committed because individuals who commit crimes suffer from a mental disorder. For example, someone who is in and out of the justice system for theft might suffer from a drug addiction and the reason he or she constantly steals is to pay for that habit. Section 1001.36 attempts to address the underlying reasons for the defendant’s entry and re-entry into the criminal justice system. Another example might be a defendant who is charged with assault because he has bipolar disorder, but he has not been treated for this condition.

In order to be eligible for mental health disorder, the defendant must be diagnosed by a professional with a mental illness or disorder identified in the most recent Diagnostic and Statistical Manual of Mental Disorders, commonly called the DSM.

The recent amendment to section 1001.36 is important. Prior to this amendment, it was up to the court to decide whether the defendant suffered from a mental disorder as identified by the DSM and whether the disorder was a significant factor in commission of the crime. The language used in the prior statute was that the court was “satisfied” the defendant suffered from a mental disorder and of its relationship to the crime.

The prior version of the statute was underutilized. An analysis of the statute found that, for example, although it was estimated that 61% of LA County inmates who suffered from mental illnesses or disorders were suitable for mental health diversion, only a few hundred defendants in LA County received mental health diversion under the existing law. The amendment seeks to increase the number of mental health diversion orders.

The amended statute enacts a seemingly small change with large ramifications: The eligibility for diversion under the former version of Section 1001.36 required that the court was satisfied that the defendant suffered from a mental health disorder. The newly enacted version requires instead that for the defendant who has been diagnosed with a mental health disorder, the disorder was in and of itself a significant factor in the commission of the alleged offense. The Court must therefore find that the defendant’s disorder was a significant factor unless there is clear and convincing evidence that it was not. In other words, the amended Section 1001.36 creates a rebuttable presumption that there is a nexus between a person’s mental health disorder and the charged offense.

What this means in practical terms is if a defendant has been diagnosed with a DSM mental illness or disorder (even if that diagnosis is after the crime was allegedly committed) and a connection can be drawn between the mental infirmary and the crime, the court must be inclined (or even required) to order mental health diversion. This is even more true if the professional who diagnosed the mental health disorder opined that there was a connection.

There were other minor changes to the statute, but most of the requirements from the previous law remain. The primary upshot of this amendment is that it takes some of the onus off the courts and encourages the use of this diversion scheme.

Orange County criminal defense attorney William Weinberg encourages his clients who might be eligible for one of the several diversion schemes, including mental health diversion, offered by California law to explore that option. He is available for a complimentary consultation to review your eligibility or other options. You may contact him at his Irvine office at 949-474-8008 or by emailing him at