San Diego Attorney Experienced In Mental Health Diversion
Last updated on November 13, 2025
In certain cases, individuals charged with crimes in San Diego may be eligible for mental health diversion under California Penal Code § 1001.36. This law provides an opportunity for qualifying defendants to receive mental health treatment instead of facing traditional criminal penalties.
At The Law Offices of Mark Deniz APLC in San Diego, attorney Mark Deniz helps clients pursue this avenue when appropriate. As a former prosecutor with more than 20 years of criminal law experience, he has an intimate knowledge of the various consequences a conviction may cause. He will aggressively defend you by exploring every angle and argument to provide a strong and effective defense.
What Is Mental Health Diversion?
Mental health diversion is a pretrial program that allows criminal proceedings to be paused while the defendant undergoes treatment for a diagnosed mental health condition. If the defendant successfully completes the program, the charges are dismissed, and the arrest record may be sealed and destroyed. This effectively allows the defendant to state that the arrest never occurred.
An alternative diversion program is available for military service members charged with certain offenses that may have been caused by or connected to a mental health condition resulting from their service. Our attorney handles these cases as well.
Who Qualifies?
To be eligible for mental health diversion, the court must find that:
- The defendant has a qualifying mental disorder (e.g., bipolar disorder, schizophrenia or post-traumatic stress disorder).
- The disorder played a significant role in the alleged offense.
- A qualified mental health expert believes the defendant would benefit from treatment.
- The defendant consents to diversion and agrees to comply with treatment.
- The defendant agrees to give up certain rights (like the right to a speedy trial).
- The defendant does not pose an unreasonable risk to public safety.
- A suitable treatment plan is in place.
Certain serious offenses – such as murder, rape and crimes requiring sex offender registration – are excluded from eligibility.
When Can It Be Requested?
Mental health diversion must be requested before a formal determination of guilt has taken place (whether through a trial or a guilty plea). Ideally, the motion should be filed before the trial begins.
Why Consider Mental Health Diversion?
The primary benefit of mental health diversion is the dismissal of criminal charges upon successful completion of treatment. Additionally, the arrest record can be sealed, offering a fresh start without the long-term consequences of a criminal conviction.
Breaking Down The Eligibility Requirements For Mental Health Diversion
If you’re considering mental health diversion, it’s important to understand whether you qualify and what obstacles might stand in your way. Our lawyer can evaluate your circumstances and provide guidance on this critical issue.
Here are some additional details about the eligibility requirements:
1. You Must Have A Qualifying Mental Health Disorder
To be considered for diversion, the court needs proof that you have a diagnosable mental health condition. Our defense attorney can work with a court-approved mental health expert to evaluate you. This expert may:
- Examine you directly
- Review your medical and arrest records
- Analyze other relevant documents
After their review, the expert typically provides a written opinion to the judge. In more complex cases, they may also testify in court.
2. Your Mental Health Condition Must Have Contributed To The Crime
The judge must be convinced that your mental health disorder played a significant role in the alleged offense. Your attorney will present evidence such as police reports, witness statements, medical records or expert testimony to show that your symptoms were present during or around the time of the incident.
3. Treatment Must Be Likely To Help You
A qualified mental health professional must believe that treatment will improve your condition and reduce the likelihood of future criminal behavior. This opinion is crucial to the court’s decision.
4. You Must Agree To Mental Health Treatment
Participation in the diversion program is voluntary. You must agree to follow the treatment plan laid out by the court and its appointed professionals.
5. You Must Waive Your Right To A Speedy Trial
Because diversion pauses the criminal process while you undergo treatment, you’ll need to waive your constitutional right to a speedy trial. In rare cases, if your mental condition prevents you from making an informed decision, the court may allow diversion without requiring this waiver.
6. You Must Not Pose A Threat To Public Safety
The judge must be satisfied that you won’t pose a danger to the community if you’re diverted from traditional prosecution. Our attorney may present expert testimony, your criminal history and details of the alleged offense to support this.
What Does The Treatment Program Involve?
Mental health diversion programs typically last from 12 to 18 months but cannot exceed two years. Treatment may be inpatient, outpatient or a combination of both, depending on your needs and the court’s assessment.
You may be responsible for the cost of treatment. If you’re unable to pay, the court may refer you to a county mental health agency, provided it has the resources to support and supervise your care.
Throughout the program, the treatment provider must submit regular progress reports to the court, the prosecutor and your attorney. Based on these reports, the judge may:
- Modify your treatment plan
- Resume criminal proceedings if you’re not complying
- Refer you for further evaluation (e.g., to determine if you need a conservator)
Common reasons for a hearing include:
- Being charged with a new crime
- Engaging in behavior that suggests you’re no longer a good candidate for diversion
- Failing to meet the terms of your treatment plan
As you can see, full compliance with your treatment plan is essential for successfully completing the program.
What Happens If You Complete The Program?
If you successfully complete the program, the court will dismiss the charges against you. You may also have your arrest record sealed.
Completion means:
- You’ve met the program’s requirements.
- You haven’t committed any new, unrelated crimes.
- You’ve developed a long-term plan for ongoing mental health care.
If you don’t complete the program, the court will resume the criminal case and you’ll face prosecution as originally planned.
Clearing Your Record After Successful Completion
If you successfully complete the diversion program, the arrest tied to your original charges can be sealed and destroyed. This means that, in most cases, you can legally say the arrest never happened.
This can be a major benefit when applying for jobs, housing or professional licenses. Employers and licensing boards generally cannot use the sealed arrest against you. However, there are a few exceptions:
- Law enforcement agencies may still access the sealed record for official duties.
- If you apply to become a peace officer, you must disclose the arrest.
- Immigration courts may still consider the sealed record when making decisions.
Our lawyer can help you through the process of getting the record sealed.
Immigration Considerations
While mental health diversion itself does not trigger immigration consequences, it’s critical that noncitizens do not plead guilty or admit to facts that could support a deportable offense. To protect your immigration status:
- Do not plead guilty to a deportable crime.
- Do not admit to any facts that could be used to support a deportable offense.
If you’re not a U.S. citizen, it’s essential to speak with a qualified criminal defense attorney before agreeing to mental health diversion. Understanding the immigration implications ahead of time can help you avoid unintended consequences.
Why Mental Health Diversion Might Be The Right Path Forward
California’s mental health diversion program offers a powerful opportunity for individuals facing criminal charges to avoid a conviction and a lasting arrest record while getting the mental health treatment they need to move forward with their lives. The first step in this process is hiring a dedicated and experienced attorney who genuinely cares about your future and will fight to help you achieve the justice you deserve.
If you believe mental health diversion might be right for you, contact The Law Offices of Mark Deniz APLC at 858-429-9982 to begin your path toward recovery and resolution.