A mental health diagnosis does not automatically excuse a theft allegation. However, it may support a request for treatment through California’s mental health diversion law. For qualifying defendants, Penal Code § 1001.36 allows prosecution to be postponed while the person participates in an approved treatment plan. Satisfactory completion can lead to dismissal of the diverted charges. Whether diversion is available depends on the diagnosis, its connection to the alleged offense, the charges, and the court’s assessment of treatment and public safety. A diagnosis alone does not guarantee approval.
This article provides general information, not legal advice. Diversion eligibility, treatment requirements, record protections, and case outcomes depend on the circumstances and applicable law.
What Is Mental Health Diversion?
Mental health diversion is a statewide statutory process that allows qualifying defendants to receive treatment while their criminal prosecution is postponed. It can apply to misdemeanor and felony cases, subject to the statute’s exclusions and requirements.
A theft charge may be eligible for consideration, but the judge must evaluate the individual case. The court retains discretion after considering the statutory criteria and the positions of the defense and prosecution.
This is different from simply receiving a treatment referral. Diversion changes how the prosecution proceeds and creates a potential path to dismissal if the defendant satisfactorily completes the program.
Can Theft Charges Qualify?
Theft-related charges are not categorically excluded from mental health diversion. However, eligibility depends on the complete set of charges and the requirements of § 1001.36. The statute lists specific excluded offenses; it does not use a blanket rule that every serious or violent allegation prevents consideration.
The defense must also address the defendant’s mental disorder, its relationship to the alleged conduct, treatment responsiveness, and suitability for treatment in the community.
A person should not assume that a low-value theft automatically qualifies—or that a felony theft allegation automatically rules diversion out.
Which Mental Health Conditions Can Qualify?
Section 1001.36 requires evidence of a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders. The current statute excludes antisocial personality disorder and pedophilia; it does not list borderline personality disorder as an excluded diagnosis.
The required evidence includes a diagnosis or treatment for a diagnosed mental disorder within the preceding five years by a qualified mental health expert. A general statement that someone has experienced stress or emotional difficulty is not a substitute for the required expert evidence.
An attorney can work with a qualified professional to determine what evaluation and supporting documentation the court needs.
Must the Disorder Be Connected to the Alleged Theft?
Yes. The mental disorder must have been a significant factor in the commission of the charged offense. But California law provides an important presumption in evaluating that connection.
When the qualifying diagnosis requirement is established, the court must find that the disorder was a significant factor unless clear and convincing evidence shows it was not a motivating, causal, or contributing factor in the alleged offense.
That does not mean every defendant with a diagnosis will receive diversion. It means the court must apply the statutory framework rather than require the defense to establish the connection without regard to that presumption.
Eligibility and Suitability Are Different
A defendant may meet the initial eligibility requirements while still needing to establish that diversion is appropriate.
The court separately considers whether:
- A qualified mental health expert believes the symptoms motivating the criminal behavior would respond to treatment.
- The defendant consents to diversion and waives applicable speedy-trial rights, subject to statutory exceptions.
- The defendant agrees to comply with treatment.
- Treatment in the community would not pose an unreasonable risk of danger to public safety under the statutory standard.
The public-safety inquiry has a specific legal framework. It should not be reduced to an informal judgment that someone seems sympathetic or has no prior record. Likewise, an expert’s recommendation does not replace the court’s responsibility to evaluate suitability.
How Long Does Mental Health Diversion Last?
The maximum period depends on the classification of the charge:
| Case type | Maximum diversion period |
|---|---|
| Misdemeanor | One year |
| Felony | Two years |
These are statutory maximums, not a promise that every participant will receive the same program length. The treatment plan and court order establish the requirements in the individual case.
A program may involve inpatient or outpatient treatment, depending on the court’s assessment and the treatment needs identified. The court must be satisfied that the recommended program meets the defendant’s specialized needs.
What Does Participation Require?
Mental health diversion involves ongoing obligations, not simply attending an initial evaluation.
Participants must comply with the approved treatment plan. The treatment provider submits regular progress reports to the court, defense, and prosecution. The court monitors the case to determine whether treatment is proceeding appropriately.
Before accepting diversion, make sure you understand:
- The treatment requirements.
- Appointment and attendance expectations.
- Reporting obligations.
- Any court appearances.
- Restitution requirements.
- How to report a problem affecting compliance.
A treatment plan should be understood clearly enough that the participant knows what the court expects and whom to contact if difficulties arise.
Can the Court Require Restitution?
Yes. Restitution is particularly relevant in theft cases.
Upon request, the court must determine whether victim restitution is owed and order payment during diversion when appropriate. However, inability to pay because of indigence or mental disorder cannot be used to deny diversion or find that the defendant has failed to comply.
Financial hardship should be brought to the court’s attention through counsel rather than ignored. Treatment participation and restitution are related parts of the diversion process, but the statute expressly protects against treating qualifying inability to pay as noncompliance.
What Happens If Treatment Is Not Going Well?
A setback does not automatically end diversion. Section 1001.36 provides procedures for addressing specified problems, including hearings and consideration of whether treatment should be modified or criminal proceedings reinstated.
The response depends on the circumstances. New allegations, unsatisfactory treatment performance, and concerns about the defendant’s ability to benefit from treatment may require court review under the statute.
If a problem develops, communicate with your attorney promptly. Do not assume that missing an appointment is harmless—or that a single difficulty necessarily means the opportunity for diversion is lost.
What Happens After Successful Completion?
If the court finds that the defendant satisfactorily completed diversion, it must dismiss the diverted charges. The statute also provides protections concerning the arrest record.
Those protections are substantial, but they should not be described as erasing every record or guaranteeing that the person will never have to disclose the arrest. Section 1001.36 contains exceptions, including specified criminal-justice access and disclosure requirements. It also does not eliminate unrelated convictions or other cases.
Before answering questions on an application or professional form, obtain advice about the exact wording and any applicable disclosure obligation.
When Should You Ask About Diversion?
Seek advice early, but do not assume that arraignment is the deadline.
Section 1001.36 defines diversion as postponement of prosecution from charging until adjudication. Preparing a request may require obtaining records, arranging an expert evaluation, and developing a proposed treatment plan.
An early discussion gives counsel time to assess the available evidence and identify treatment options. The correct timing still depends on the procedural status of the case.
How Can a Defense Attorney Help?
A mental health diversion request requires more than a diagnosis. Counsel can evaluate the charges, review statutory exclusions, obtain appropriate expert evidence, and explain the difference between eligibility and suitability.
An attorney can also help present a treatment proposal, address restitution issues, and explain the consequences of accepting diversion. At the same time, the defense should continue evaluating the prosecution’s evidence and any defenses to the underlying charge.
Speak With a San Diego Criminal Defense Attorney
If you are facing theft charges and believe a mental health condition contributed to the alleged conduct, ask whether Penal Code § 1001.36 may apply. Treatment and dismissal may be possible, but approval depends on the statutory requirements and the court’s assessment.
Contact jD LAW Criminal Defense Attorney to discuss your San Diego case and potential options for mental health diversion.