How Mental Health Diversion Under PC 1001.36 Works in San Diego: A Step-by-Step Guide

If someone you love has been arrested in San Diego and you know a mental health condition played a part, the criminal process can feel like it is asking all the wrong questions. Penal Code section 1001.36 exists for this situation: it lets a judge pause a criminal case, before any conviction, and route the person into court-supervised treatment. If the treatment period goes well, the case is dismissed and the arrest record is sealed.

This guide focuses on how the process actually works: the steps in a San Diego courtroom, what the judge has to find, what the treatment period looks like, what happens if there is a stumble along the way, and how the case ends. Nothing here is legal advice about a specific case, but it should help you understand the road ahead.

The Process From Start to Finish

A request for mental health diversion can be raised at almost any point before a case is decided, from shortly after charges are filed up until adjudication. In practice, the earlier the conversation starts, the better, because the motion depends on clinical records that take time to gather. A typical path looks like this:

• Defense counsel gathers mental health history: diagnoses, hospitalizations, therapy and medication records, and statements from treating providers.
• A qualified mental health professional (usually a psychologist or psychiatrist) evaluates the defendant and writes a report addressing the statutory requirements.
• Counsel builds a written treatment plan naming the provider, the type of treatment, and how progress will be reported to the court.
• A formal motion is filed and served on the prosecution, which may respond and may request its own evaluation.
• The court holds a hearing, considers the evidence, and either grants diversion, denies it, or asks for more information.
• If diversion is granted, criminal proceedings are suspended and the treatment period begins, with periodic progress reviews before the judge.

What the Judge Has to Find

Since amendments that took effect in 2023, the statute separates the question into two parts: eligibility and suitability. Eligibility asks whether you have a qualifying mental health disorder recognized in the DSM-5, the standard diagnostic manual, and whether that disorder was a significant factor in the charged offense. Nearly any DSM-5 diagnosis can qualify; under current law only two are excluded, antisocial personality disorder and pedophilia.

Suitability asks whether diversion makes sense for this person. The judge considers whether, in the opinion of a qualified mental health professional, the symptoms that contributed to the offense would respond to treatment; whether the defendant consents to diversion and gives up the right to a speedy trial; whether the defendant agrees to comply with treatment; and whether the defendant would pose an unreasonable risk of danger to public safety if treated in the community.

That last phrase sounds broad, but the statute borrows a deliberately narrow definition from another part of California law: the question is whether the person is likely to commit one of a short list of the most serious violent felonies, not whether they might ever break a rule again.

The Presumption: How a Recent Diagnosis Changes the Hearing

The 2023 amendments did more than reorganize the statute. If the defense shows a qualifying diagnosis within the last five years, the court is required to presume that the disorder was a significant factor in the offense. The prosecution can overcome that presumption only with clear and convincing evidence that the disorder did not contribute to the conduct. That is a high bar. When the diagnosis is recent and documented, the argument at the hearing shifts to suitability: the treatment plan, the clinician's opinion, and community safety. This is why assembling medical records early matters so much. A diagnosis sitting in a hospital file can do real work in court once someone retrieves it.

Charges That Cannot Be Diverted

Mental health diversion reaches both misdemeanors and most felonies, which makes it unusual among California diversion programs. But the Legislature carved out charges that can never be diverted regardless of diagnosis: murder and voluntary manslaughter, rape and most other offenses requiring sex offender registration, and a small number of other especially serious charges.

If the charged offense is not on the excluded list, it is potentially divertible, including many serious felonies. Whether the judge grants diversion in a serious case turns on the suitability findings, and the seriousness of the charge naturally shapes how closely the court examines the treatment plan and the safety element.

The Prima Facie Showing

Before committing everyone to a full evidentiary hearing, the court may ask the defense for a prima facie showing, a threshold demonstration that the requirements could plausibly be met. Counsel can typically satisfy this with a proffer: the clinical evaluation, treatment records, and the proposed plan, without live testimony.

If the threshold showing is not made, the court can deny the motion at that stage, which is why a diversion request should never be filed thin. The strongest motions arrive with the diagnosis documented, the connection to the offense explained by a clinician, and the treatment plan already arranged.

What the Treatment Period Actually Looks Like

If diversion is granted, criminal proceedings are suspended and the treatment plan takes over. The maximum period is two years for a felony and one year for a misdemeanor, though courts can and do approve shorter plans when a clinician supports it. Treatment can be inpatient or outpatient, and it can run through county behavioral health programs, community providers, or private clinicians. The statute allows the defendant to use private insurance or private providers if that is the right fit.

During the period, the provider sends regular progress reports to the court and the defendant returns for periodic review hearings, which are usually brief when things are going well. For a defendant who was in custody when diversion was granted, the grant typically comes with release to begin treatment, which for many families is the most immediate and meaningful change diversion brings.

If Something Goes Wrong During Diversion

Recovery is rarely a straight line, and the statute accounts for that. Criminal proceedings do not spring back to life automatically because of a missed appointment. If the defendant is charged with a new offense of a kind the statute treats as significant, or is reported to be performing unsatisfactorily in treatment, the court holds a hearing before deciding what to do. The judge's options include modifying the treatment plan (a different provider, a higher level of care, added structure) as well as reinstating the criminal case in more serious situations.

The practical lesson is to communicate early. A medication change that is not working, a housing problem that threatens attendance, or a conflict with a provider can all be solved if counsel and the clinician hear about them before a bad progress report reaches the judge.

Completion: What Dismissal and Sealing Actually Do

When the court finds the defendant has performed satisfactorily (attended treatment, complied with the plan, and avoided disqualifying new offenses), it dismisses the charges. The arrest is deemed never to have occurred, and access to the record is restricted. For nearly all purposes, including most job and housing applications, the person may lawfully answer as though the arrest and the case never happened.

There are narrow exceptions: applications to become a peace officer are treated differently, and the sealed record remains visible to the justice system itself in limited contexts. But the headline result holds: no conviction, no plea, no probation, and nothing to expunge later. The case simply ends.

Diversion When Competency Is in Question

Mental health diversion also connects to a different body of law: competency to stand trial. When a court doubts that a defendant can understand the proceedings or assist counsel, the case ordinarily detours into competency evaluations and, for those found incompetent, restoration treatment that can mean long waits for a state hospital bed. California law now allows courts to consider mental health diversion for defendants found incompetent, moving them into community treatment instead of the restoration pipeline.

For families, this can be the difference between a loved one waiting in jail for a hospital placement and a loved one in community treatment with a path to dismissal. Presenting diversion inside a competency case takes coordination between counsel, evaluators, and the court, but the door is open, and it is worth asking about whenever competency has been raised.

The San Diego Process: Courts and Local Resources

San Diego County criminal cases are heard at four main branches, and a diversion motion is filed in whichever branch holds the case: the downtown Central Courthouse for much of the central county, Chula Vista for South Bay cases, Vista for North County, and El Cajon for East County. Judges at every branch hear PC 1001.36 motions; the motion follows the case.

San Diego also has infrastructure that helps these motions succeed: behavioral health court programming for defendants with serious mental illness, county behavioral health services and community providers to anchor a plan, and judges accustomed to reviewing clinical progress reports. None of that makes a grant automatic, since San Diego courts look hard at the safety element and at whether the plan is specific and realistic. But a well-built motion lands in a system that knows what to do with it.

If you are weighing this path for yourself or a family member, the most useful first step is gathering the treatment history: provider names, hospitalization dates, current medications, and any written diagnosis. Marc Kohnen at Law Office of Marc S. Kohnen handles mental health diversion motions in San Diego courts and offers free, confidential consultations for anyone trying to figure out whether PC 1001.36 fits their situation.

Frequently Asked Questions

Do I have to plead guilty to get mental health diversion?

No. Mental health diversion is pretrial, and the case is paused before any plea or trial. You do not admit guilt to enter the program, and if you complete it, the charges are dismissed without a conviction ever occurring. You do have to consent to diversion and give up your right to a speedy trial while the case is suspended.

How long does it take to get a diversion motion heard in San Diego?

It depends on how quickly the clinical pieces come together. The evaluation, records, and treatment plan usually take weeks to assemble, and the court then needs time to set a hearing and let the prosecution respond. Starting early is the single biggest factor in how fast the motion moves.

What happens if I am arrested for something new while on diversion?

It triggers a court hearing, not an automatic termination. The judge looks at what happened and decides whether to modify the treatment plan or, for more serious new charges, reinstate the original criminal case. The nature of the new offense matters a great deal, and you have the right to be heard before anything changes.

Can my family help with the diversion motion?

Yes, often significantly. Families frequently hold the treatment history the motion needs (provider names, hospitalization dates, medication records) and can help make the treatment plan work, from housing to transportation. Judges also weigh family support when judging whether a community plan is realistic.