If a mental-health condition played a role in your San Francisco criminal charge, mental health diversion — Penal Code 1001.36 — may let you get treatment instead of a conviction, and have the case dismissed on successful completion.
It applies to many misdemeanors and felonies, with a specific eligibility test and a defined list of excluded offenses. Here is how it works.
What Mental Health Diversion Is
It is a pretrial program. The court pauses your case, you complete a treatment plan for your condition, and if you finish successfully the charge is dismissed. It recognizes that treating the underlying condition often does more for public safety than a conviction does.
Who Qualifies
The current statute breaks eligibility into two parts. First, two eligibility criteria:
- You have been diagnosed with a qualifying mental disorder within the DSM — for example bipolar disorder, schizophrenia, schizoaffective disorder, or PTSD. The only diagnoses expressly excluded are antisocial personality disorder and pedophilia. (Borderline personality disorder is not excluded.)
- The disorder was a significant factor in the offense. This one now favors you: the court must find it was a significant factor unless there is clear and convincing evidence that it was not.
Then four suitability findings: a qualified professional’s opinion that your symptoms would respond to treatment; your consent and a waiver of speedy-trial time; your agreement to comply with treatment; and that you would not pose an unreasonable risk of danger to public safety if treated in the community.
Which Charges Are Not Eligible
The statute lists the excluded offenses: murder and voluntary manslaughter; any offense requiring sex-offender registration (except PC 314); rape; a lewd act on a child under 14; assault with intent to commit certain sex offenses (PC 220); rape or sexual penetration in concert (PC 264.1); continuous sexual abuse of a child (PC 288.5); and weapons-of-mass-destruction offenses (PC 11418). If your charge is not on that list, eligibility is on the table.
What Treatment Looks Like
A court-approved plan — inpatient or outpatient — matched to your condition, with progress reported to the judge. The diversion period runs up to two years for a felony and up to one year for a misdemeanor.
What Happens at the End
Complete it, and the court shall dismiss the charge, the arrest is deemed never to have occurred, and the record is sealed — you can generally say you were never arrested or diverted for it. A few limits apply, such as disclosure for peace-officer job applications. Fail it, and the case resumes where it left off — which is why the treatment plan and the professional’s opinion have to be solid before you ask.
Mental Health Diversion vs. the Other Diversions
- PC 1001.36 (this page) — mental-disorder-based; misdemeanors and felonies, subject to the exclusion list above.
- PC 1001.95 judicial diversion — judge-granted, misdemeanors, no mental-disorder requirement. Note: DUIs are barred from both 1001.95 and 1001.36 by Vehicle Code 23640 — for a DUI the only diversion door is military.
- Military diversion (PC 1001.80) — service-connected conditions.
Picking the right track is half the battle; sometimes more than one is on the table.
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Schedule Free ConsultationAbout the Author
Ahmed S. Hasan
San Francisco Criminal Defense Attorney · State Bar of California #364992
Ahmed S. Hasan is the founder of ASH Legal, a solo criminal defense practice based in San Francisco. The firm runs on flat-fee representation: one lawyer, one fee, from arraignment through resolution. No hourly billing. No surprise invoices.
Ahmed is a graduate of Emory University School of Law and a member in good standing of the State Bar of California (Bar #364992). His practice focuses on San Francisco misdemeanor defense — DUI, domestic violence, petty theft and shoplifting, drug possession, vandalism, trespassing, and assault and battery — with particular attention to diversion-track outcomes that end in dismissal under PC 1001.95, PC 1001.36 (Mental Health Diversion), PC 1001.80 (Military Diversion), and PC 1001.83 (Parental Caregiver Diversion).
Ahmed previously served as a post-bar clerk with the San Francisco Public Defender's Office, the city's largest indigent-defense practice. He is a member of the Asian Pacific American Bar Association of Silicon Valley.
He represents clients at the San Francisco Hall of Justice (850 Bryant Street) and the Civic Center Courthouse. The ASH Legal office is at 15 Boardman Place, Suite 301, San Francisco, CA 94103.
Free 30-minute consultations are available by phone or Zoom. (510) 545-6515 · ahmed@ashlegal.com