May 20, 2024 By Paul Wallin

Can I Qualify For Mental Health Diversion To Avoid Going To Jail? Penal Code Section 1001.36

Mental Health Diversion (MHD) in California is a legal procedure aimed at providing treatment for individuals who suffer from mental health disorders and are charged with criminal offenses. This initiative is designed to address the underlying mental health issues that may contribute to criminal behavior, thereby diverting eligible individuals away from the traditional criminal justice system and into appropriate mental health care.

Section 1001.36(f)(1)(D)

California Section 1001.36(f)(1)(D) is part of the legal framework designed to provide mental health diversion for eligible defendants. This provision allows certain individuals accused of crimes to undergo mental health treatment instead of traditional prosecution. However, it stipulates that if the court grants diversion under this section, it does not relieve the defendant of the responsibility to provide full restitution to the victim. Essentially, regardless of the diversion, the offender is still required to compensate the victim for their losses fully.

Under the provisions of California Section 1001.36(f)(1)(D), the time frame for a mental health diversion is notably capped. Specifically, the law limits the duration of such diversion to a maximum of two years. This two year limitation underscores the Legislature’s intent to balance the needs of defendants requiring mental health treatment with the broader objectives of justice and public safety. Within this period, the defendant must complete the approved treatment program as a condition of their diversion. The two-year limit also serves as a safeguard, ensuring that diversion does not indefinitely delay the legal process. It allows for a reassessment of the defendant’s progress and condition, determining whether they have successfully addressed the issues that led to their criminal behavior. Failure to complete the treatment satisfactorily or any new criminal activity may lead to the termination of the diversion and a resumption of the criminal proceedings.

Eligibility and Ineligibility

Who is Eligible?

Eligibility for mental health diversion is determined by several criteria, which generally include:

  • The individual must have been diagnosed with a qualifying mental health disorder as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM).
  • The mental health disorder must have significantly contributed to the commission of the alleged criminal offense.
  • A mental health care professional must affirm that the individual would benefit from diversion into a treatment program.

Who is Not Eligible?

Certain types of offenses and circumstances render an individual ineligible for mental health diversion:

  • Serious and violent felonies, such as murder, rape, and crimes involving great bodily harm.
  • If the court finds that the defendant poses an unreasonable risk of danger to public safety if treated in the community.

Application Process

The process for applying for mental health diversion typically involves the following steps:

  1. Motion to Request Diversion: The defendant or their attorney files a motion with the court to request mental health diversion.
  2. Mental Health Assessment: A qualified mental health professional evaluates the defendant to confirm the presence of a qualifying mental disorder.
  3. Court Hearing: A hearing is held to review the findings and determine whether the defendant meets the eligibility criteria and whether diversion is appropriate.

Duration and Monitoring

Time Span:

The duration of mental health diversion can vary, but it typically lasts up to two years, depending on the individual’s treatment plan and progress.

Court Appearances:

Regular court appearances may be required to monitor compliance with the treatment program. The frequency of these appearances is determined by the court and depends on the specifics of the case.

Treatment Settings and Costs

Inpatient vs. Outpatient:

Defendants can be admitted into mental health diversion on either an inpatient or outpatient basis. The choice depends on the severity of the mental health disorder and the treatment required.

Cost of Services:

The cost of mental health services under this law is generally covered by the county’s mental health system or through state funding. However, private health insurance may also be used where applicable.

Successful Completion and Consequences

Completion and Case Dismissal:

If you successfully complete the mental health diversion program, your criminal charges will typically be dismissed, and you will no longer face jail time.


If you do not comply with the terms of the mental health diversion program, your criminal charge can be reinstated, and you could face the original penalties, including jail or prison time.

How Wallin and Klarich Can Help You Be Approved for Mental Health Diversion

Our law firm can play a critical role in ensuring that defendants navigating the complexities of California’s criminal justice system, particularly in the context of mental health diversion and restitution obligations, receive fair treatment. First and foremost, we provide legal representation and counsel, guiding defendants through each stage of the criminal process. When it comes to mental health diversion under Section 1001.36(f)(1)(D), Wallin and Klarich criminal defense lawyers can help by evaluating the eligibility criteria and advocating for the defendant’s participation in the program. This includes presenting evidence of mental health issues that contributed to the criminal behavior and demonstrating how diversion to treatment could serve the interests of justice and public safety.

Regarding restitution, our law firm  can negotiate the terms and amount of restitution, ensuring they are reasonable and fair based on the defendant’s financial ability and the actual losses incurred by the victim. We can also assist in petitioning the court for modifications of the restitution order if the defendant’s financial circumstances change significantly. Furthermore, our lawyers  can work towards disputing or mitigating additional legal consequences if the defendant struggles to meet restitution payments, thereby protecting the defendant’s rights while balancing the victim’s rights to compensation.Our law firm has been successfully representing thousands of clients. Call us for a free consultation to see if we can help you at 877-466-5245. We will be there when you call. We have offices in Irvine, Pasadena, Riverside, San Bernardino, San Diego, Torrance, Victorville, West Covina, and Anaheim. Call us for a free consultation at 877-466-5245.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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