Section 1001.36 authorizes a pretrial diversion program for Ds with qualifying mental disorders.
“Pretrial diversion” is defined as “the postponement of prosecution, either temporarily or permanently, at any point in the judicial process at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment. (People v. Frahs (2020) 9 Cal.5th 618, 626.)
A court may grant pretrial diversion under section 1001.36 if the court finds:
(1) the D suffers from a qualifying mental disorder
(2) the mental disorder was a “significant factor” in the commission of charged offense
(3) a qualified mental health expert opines the D’s symptoms will respond to treatment
(4) the D consents to diversion and waives his speedy trial rights
(5) the D agrees to comply with the treatment as a condition of diversion; and
(6) the D will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18 and 667(e)(2)(C)(iv), if treated in the community. (PC 1001.36(b)(1)(A)-(F).)
Ex: sexually violent offense, PC 288, homicide, assault w/ machine gun on peace officer, possession of weapons of mass destruction
Eligible. Defendants are eligible if
(1) they have been diagnosed with a recognized mental disorder in the last five years by a qualified mental health expert; and
(2) the mental disorder was a significant factor in the commission of the charged offense. (PC 1001.36(b)(1)-(2).)
Presumption of Eligibility. “If D has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, casual factor, or contributing factor to the defendant’s involvement in the alleged offense.” (PC 1001.36(b)(2).)
Suitability. Suitability criteria includes:
(1) a mental health expert opines defendant’s symptoms motivating the criminal conduct will respond to mental health treatment
(2) defendant consents to diversion and waives time
(3) D agrees to comply with treatment as a condition of diversion; and
(4) D does not pose an unreasonable risk to public safety. (PC 1001.36(c)(1)-(4).)
Suitability – Unreasonable Risk to Public Safety. Refers to a likelihood that D will commit one of the violent felonies specifically enumerated in the statute.
If D has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion and the arrest upon which the diversion was based shall be deemed never to have occurred. (People v. Frahs (2020) 9 Cal.5th 618, 627.)
DUI defendants are categorically ineligible from MHD [VC 23640; the “Moore” opinion]
Where defendant charged with DUI and PC 245(a)(1) and both are part of a single case and single course of conduct, defendant is ineligible for MHD on all the charges. (People v. Garcia (Sep. 15, 2025) B335902.)
Following offenses are ineligible for PC 1001.36 diversion (PC 1001.36(d).):
Murder or voluntary manslaughter
An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of PC 314.
Rape
Lewd or lascivious act on a child under 14 years of age
Assault with intent to commit rape, sodomy, or oral copulation, in violation of PC 220
Continuous sexual abuse of a child, in violation of PC 288.5