California Mental Health Diversion in 2026: What Defendants and Families Need to Know

Chastaine & Jones Criminal Defense Attorneys

Last reviewed: September 2026

When criminal charges grow out of a mental health crisis, the usual court process may not be the only option.

California’s mental health diversion law allows some defendants to put their criminal case on hold while they receive treatment. If they complete the program successfully, the court generally dismisses the charges and restricts access to the arrest record.

For a defendant or family member, that can sound simple: obtain a diagnosis, ask for diversion, and enter treatment. In practice, it takes more than that.

The judge will want to know what was happening when the alleged offense occurred. The court will also look closely at whether the condition can be treated, whether a workable program is actually available, and whether the person can be treated safely in the community.

The law is also changing. Assembly Bill 46 was signed on June 29, 2026. Its amendments are scheduled to take effect on January 1, 2027. Until then, courts continue to apply the current version of California Penal Code Section 1001.36.

Quick Answers About California Mental Health Diversion

Could mental health diversion apply to my criminal case?

It may. A defendant generally needs a qualifying mental disorder that was a significant factor in the alleged offense. The judge must also find the person suitable for treatment through diversion.

The charges, diagnosis, criminal history, treatment history, facts of the incident, and proposed treatment plan can all affect the decision.

What criminal charges qualify for mental health diversion in California?

Diversion can be considered in many misdemeanor and felony cases. It is not limited to low-level charges.

California law excludes certain offenses, however. These include murder, voluntary manslaughter, rape, most crimes requiring sex offender registration, and several other serious sexual offenses.

What must a criminal defense lawyer show to obtain mental health diversion?

The defense must provide evidence of a qualifying mental disorder from an appropriate mental health expert. The defense must also establish that the disorder played a significant role in the alleged conduct and that treatment is a reasonable alternative to continuing the prosecution.

A diagnosis opens the door. It does not finish the job.

The evaluation and treatment proposal should help the judge understand what symptoms were present, how they affected the person’s behavior, and what will be done to reduce the likelihood of another incident.

What happens after successful completion of mental health diversion?

The court generally dismisses the diverted charges after satisfactory completion.

The arrest is then deemed never to have occurred, and access to the record is restricted, subject to several legal exceptions. A person may also continue with a long-term treatment plan after the criminal case has ended.

How is California’s mental health diversion law changing in 2027?

Beginning January 1, 2027, AB 46 will change the timing rules connected to a diagnosis, broaden the public-safety standard, and require greater attention to the proposed treatment plan.

Judges who deny diversion will also be required to state their reasons on the record.

What Is Mental Health Diversion Under Penal Code Section 1001.36?

Mental health diversion pauses the prosecution of an eligible criminal case while the defendant participates in court-approved treatment.

Treatment may be inpatient or outpatient. The right arrangement depends on the person and the condition involved. It could include therapy, psychiatric treatment, medication management, residential care, substance-use services, or case management.

The court must be satisfied that the proposed program can meet the defendant’s mental health needs. A county agency or collaborative court cannot simply be ordered to accept someone when it has not agreed to provide the services.

For felony charges, diversion may last up to two years. For misdemeanor charges, the maximum period is generally one year.

The treatment provider submits progress reports during that time. The judge may hold review hearings and make changes when the original plan is no longer working.

Diversion is therefore not an immediate dismissal. The defendant earns that dismissal by participating in treatment and complying with the court’s conditions.

Who Is Eligible for Mental Health Diversion in California?

Under the law in effect during 2026, the defendant must have a disorder recognized in the current Diagnostic and Statistical Manual of Mental Disorders.

Penal Code Section 1001.36 specifically mentions bipolar disorder, schizophrenia, schizoaffective disorder, and post-traumatic stress disorder as examples. Other recognized disorders may also qualify. Antisocial personality disorder and pedophilia are excluded.

The defense must provide evidence from a qualified mental health expert. That evidence must include a diagnosis of, or treatment for, a diagnosed disorder within the previous five years.

The second part of the eligibility analysis is the connection to the criminal case. The mental disorder must have been a significant factor in the alleged offense.

Current law gives the defendant an important presumption. Once the defense presents a qualifying diagnosis, the court generally must find that the disorder was a significant factor unless clear and convincing evidence shows that it was not a motivating, causal, or contributing factor.

That sounds powerful, and it is. But it does not mean a judge must accept every conclusion in an evaluation.

The court can review police reports, witness statements, medical records, treatment history, expert reports, and evidence of the defendant’s condition near the time of the alleged offense. When an expert’s opinion does not fit the other evidence, the prosecution is likely to challenge it.

Why Eligibility Is Only the First Step

Even when someone meets the eligibility requirements, the judge must decide whether diversion is appropriate in that particular case.

Under the current law, the court considers whether the symptoms involved would respond to treatment. In most cases, the defendant must consent to diversion, waive the right to a speedy trial, and agree to comply with treatment.

Public safety also matters. The judge must determine whether the defendant would pose an unreasonable risk of danger if treated in the community.

This is where much of the real defense work begins.

A court may be looking at a police report that describes frightening, erratic, or violent behavior. The defense needs to place that incident in context without minimizing it. What was happening with the person’s mental health? Had treatment stopped? Was medication involved? Was there also a substance-use problem? What is different now?

A bare diagnosis does not answer those questions.

One case described on our Case Results page involved a client facing a felony resisting-arrest charge after a mental health crisis. By helping the client enter treatment and eventually obtain mental health diversion, the firm helped him avoid a felony conviction and jail. The case was positioned for dismissal upon successful completion of the program.

The value of that result was not simply that the client qualified under a statute. Treatment created a practical path out of a criminal case that had begun during a crisis.

What Charges Are Excluded From Mental Health Diversion?

Penal Code Section 1001.36 excludes defendants currently charged with:

• Murder or voluntary manslaughter
• An offense that would require sex offender registration under Penal Code Section 290, except for indecent exposure under Penal Code Section 314
• Rape
• Lewd or lascivious acts involving a child under 14
• Assault with intent to commit rape, sodomy, or oral copulation
• Rape or sexual penetration committed in concert with another person
• Continuous sexual abuse of a child
• Certain weapons-of-mass-destruction offenses

A charge that does not appear on this list is not automatically approved for diversion. It means only that the offense is not excluded by this portion of Section 1001.36. Other laws may affect particular categories of cases, and the judge must still consider suitability and public safety.

The surrounding facts matter as well. The court may examine injuries, weapons, prior violence, earlier treatment attempts, criminal history, and the structure of the proposed treatment program.

How Often Is Mental Health Diversion Granted in California?

The latest Judicial Council data summary covers reported mental health diversion petitions from July 2019 through December 2024.

During that period, participating California courts reported 17,152 mental health diversion petitions granted. Of those, 9,130 involved at least one felony charge.

The report includes the following figures for counties in the Chastaine Jones service area:

• Sacramento County reported 1,855 petitions granted, including 1,171 involving felony charges.
• Placer County reported 121 petitions granted, with all 121 reported as involving felony charges.
• El Dorado County reported 302 petitions granted, including 262 involving felony charges.

These numbers count petitions, not necessarily individual defendants. They also do not tell us how many participants later completed diversion successfully. The number of reporting periods and the availability of felony data differed among counties.

Still, the statewide and local figures make one point clear: mental health diversion is not used only for minor misdemeanor cases.

In another case described on our website, a client arrested for drug possession faced a potential 17-year prison term if the diversion effort failed. The client was admitted to mental health diversion, remained in mental health court, and was able to get back on track.

That result should not be taken as a prediction about another case. It does show how much may be at stake when diversion is raised in a serious felony matter.

What Recent California Cases Mean for Defendants

Three recent published decisions help explain what courts are looking for and where a mental health diversion request can run into trouble.

A Diagnosis Made After the Alleged Offense May Still Qualify Under Current Law

In People v. Harlow, the defendant’s formal diagnosis came years after the alleged offense.

The trial court found the diagnosis too remote from the charged conduct. The Court of Appeal disagreed. Under the current version of Section 1001.36, a qualifying diagnosis made within the applicable period before the diversion request can trigger the presumption that the disorder was a significant factor in the offense.

This matters for people who had symptoms long before anyone put a formal name to the condition.

A person may have gone without treatment, lost access to care, or experienced a worsening condition that was not fully evaluated until after an arrest. Under the law in effect during 2026, the later date of the diagnosis does not necessarily end the inquiry.

AB 46 will change this part of the law in 2027.

A Judge Must Use the Public-Safety Standard in the Statute

Gomez v. Superior Court arose from a Sacramento County robbery case.

The trial court denied diversion based in part on public-safety concerns. The Third District Court of Appeal found that the denial was not supported under the legal standard then in effect and directed the lower court to grant diversion.

The case did not hold that serious allegations are irrelevant. It held that courts must apply the standard selected by the Legislature rather than rely on a broader, undefined sense that a defendant may be dangerous.

That distinction remains important during 2026. It will become more complicated when AB 46 introduces a different public-safety test.

An Expert Report Must Fit the Facts of the Case

In People v. Sacco, the defendant sought diversion in a case involving alleged financial crimes.

The defense submitted an evaluation diagnosing depression and anxiety. The trial court was not persuaded that the report adequately explained how those conditions contributed to the planning and conduct alleged in the case. The Court of Appeal upheld the denial.

For defendants and families, the lesson is practical. An expert cannot simply identify a diagnosis and conclude that treatment would be beneficial. The report should address the alleged conduct, the timing of the symptoms, and facts that may appear inconsistent with the expert’s opinion.

What Will AB 46 Change in 2027?

AB 46 was approved by the governor and filed with the Secretary of State on June 29, 2026. Its amendments are scheduled to take effect January 1, 2027.

The changes do not replace the current law during the remainder of 2026. In a pending case, the timing of the motion and hearing may affect which version of the law applies. That issue should be reviewed with defense counsel.

The Timing of a Diagnosis Will Matter More

Under current law and the Harlow decision, a qualifying diagnosis obtained after the alleged offense may still trigger the presumption that the disorder contributed to the conduct.

Beginning in 2027, that presumption will apply when the defendant was diagnosed or rediagnosed within five years of the current offense.

This does not necessarily prevent a person diagnosed later from seeking diversion. The defense may still present evidence that a mental disorder existed and played a significant role.

The difference is that the defense may no longer receive the benefit of the automatic presumption based on a diagnosis made outside the new timing window.

Earlier records will become more important in those cases. Medical visits, prescriptions, hospitalizations, military or school records, communications, employment problems, and observations from people who knew the defendant may help establish that symptoms were already present.

The Public-Safety Test Will Be Broader

The current statute uses a relatively narrow definition of unreasonable danger tied to the risk of committing certain exceptionally serious violent felonies.

AB 46 replaces that test. Starting in 2027, the court must find that the defendant will not pose a “substantial and undue risk to the physical safety of another person” if treated in the community.

The judge may consider the current allegations, prior violence, criminal history, expert opinions, and the proposed treatment plan.

That broader language is likely to make the details of the plan even more important in cases involving violence or threats.

Another case on our Case Results page involved a father with PTSD who was charged with domestic violence. The court granted mental health diversion, allowing him to avoid jail, but the outcome also included a prohibition on possessing firearms.

That case illustrates an important point. Diversion may offer an alternative to conviction and incarceration, but it does not mean the court will ignore safety concerns or decline to impose meaningful restrictions.

The Expert Must Address the Actual Treatment Plan

AB 46 will require the qualified mental health expert to state that the proposed diversion plan is clinically appropriate for the symptoms that caused, contributed to, or motivated the alleged offense.

In other words, “the defendant should receive therapy” will not be much of a plan.

The proposal should identify the level of care and, whenever possible, the provider who will deliver it. It should account for medication needs, co-occurring substance use, housing, transportation, monitoring, and what will happen if the person misses treatment or begins to deteriorate.

Judges Must Explain Why Diversion Was Denied

Beginning in 2027, a court that denies mental health diversion must state its reasons orally on the record.

AB 46 also expressly requires the court to consider victims’ constitutional rights.

An explanation on the record will not guarantee that a denial can be overturned. It should, however, make clear which part of the request the judge found insufficient and whether the correct legal standard was applied.

What Does a Strong Mental Health Diversion Request Look Like?

There is no single package that works in every case. The evaluation and treatment plan have to make sense for the person standing before the court.

Start the Investigation Early

Mental health records can take time to obtain. So can military records, hospital records, prescription histories, and documents from earlier treatment providers.

Family members may know that a person had been deteriorating for months, but their recollection needs to be organized and compared with the other evidence. An evaluator may need to review the police reports rather than rely only on the defendant’s memory of the incident.

Waiting until shortly before the hearing makes all of that more difficult.

Give the Expert the Relevant Facts

A favorable diagnosis is not enough when the rest of the report avoids the difficult parts of the case.

The evaluator should understand the allegations, prior record, treatment history, substance use, and any earlier periods of instability. The report should explain how the symptoms relate to the charged conduct rather than leaving the judge to make that connection.

The defense should also expect the prosecution to point out inconsistencies. Addressing them in advance is usually more effective than pretending they are not there.

Bring the Court a Plan That Can Actually Begin

Judges are likely to have practical questions.

Has a provider accepted the defendant? Who will pay for treatment? How often will the person be seen? Is medication being monitored? Does the defendant have stable housing and transportation? Will someone notify the court if the person stops participating?

Those details may sound mundane compared with the legal argument, but they can determine whether the proposal feels real.

Our case-results page includes a matter in which a client was charged with resisting arrest after officers responded to a suicide attempt. The firm successfully petitioned for mental health diversion, connecting the client with needed support.

The outcome does not tell us that every crisis-related resisting case will qualify. It demonstrates why a defense strategy should look beyond the charge itself and examine what led to the encounter.

Do Not Hide the Facts That Concern the Court

A prior failure in treatment does not disappear because it is left out of the motion. Neither does substance use, medication noncompliance, an allegation of violence, or a history of missed appointments.

Those facts need context and, more importantly, an answer.

Perhaps the proposed program provides a higher level of care. Maybe housing has stabilized. Medication will now be supervised. A co-occurring substance-use condition will be treated instead of ignored.

The court needs to see what will be different this time.

What Happens During Mental Health Diversion?

Once diversion is granted, the prosecution is suspended while the defendant participates in the approved program.

The provider sends progress reports to the court, defense, and prosecution. The judge may review the case periodically and modify treatment when appropriate.

The court must hold a hearing to decide whether the criminal proceedings should be reinstated or the treatment changed when certain problems arise. These may include a new felony charge, a new violent misdemeanor allegation, other criminal conduct that makes the person unsuitable, or unsatisfactory performance in treatment.

A setback does not always produce the same result. The statute allows the court to consider modifying treatment rather than automatically ending diversion. Much depends on what happened and whether the underlying problem can be addressed.

What Happens After Successful Completion?

At the end of the diversion period, the court must dismiss the charges if the defendant has performed satisfactorily.

The judge may find satisfactory performance when the person substantially complied with treatment, avoided significant new violations unrelated to the mental health condition, and has a plan for continuing mental health care.

After dismissal, the arrest is deemed never to have occurred, and access to the record is restricted.

There are exceptions. Criminal justice agencies may still access the records, and an applicant for a peace officer position may have disclosure obligations. A person should speak with an attorney before assuming that a dismissed diversion case never needs to be disclosed in any setting.

For many clients, however, the central benefit is substantial: treatment can replace a conviction, and the criminal case can end without the person carrying the same public record into the future.

Speak With a Sacramento Mental Health Diversion Attorney

Mental health diversion can change the direction of a criminal case, but it should not be treated as a form request.

The defense must understand the diagnosis, the alleged conduct, the treatment history, and the concerns that may cause a judge to say no. With AB 46 taking effect in 2027, the timing of the diagnosis and the details of the proposed plan will become even more important.

Chastaine| Jones represents people facing criminal charges in Sacramento, Placer, El Dorado, and surrounding Northern California counties.

To discuss whether mental health diversion may apply to your case or the case of a family member, contact Chastaine Jones at (916) 932-7150.

Every case depends on its own facts. The results described in this article do not guarantee a similar outcome.

This article provides general information about California law and is not legal advice. Laws and court interpretations may change. Speak with an attorney about the circumstances of a specific case.

Sources

California Penal Code Section 1001.36
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=1001.36.

California Assembly Bill 46
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260AB46

Judicial Council of California, 2025 Mental Health Diversion Data Summary Report
https://courts.ca.gov/system/files/legislative-reports/lr-2025-mental_health_diversion_data-summary.pdf

People v. Harlow
https://courts.ca.gov/opinion/published-extended-post/2025-08-05/d084252

Gomez v. Superior Court
https://courts.ca.gov/opinion/published-extended-post/2025-08-15/c102211

People v. Sacco
https://courts.ca.gov/opinion/published/2026-06-22/b350634

Chastaine | Jones Case Results
https://chastainejones.com/case-results/