If you are facing criminal charges in California and live with a diagnosed mental health condition, you may be able to ask for mental health diversion. Two published appellate decisions from 2026 say that making that request does not give the prosecution the right to have its own expert examine you.
What Mental Health Diversion Can Do for Your Case
Mental health diversion comes from Penal Code section 1001.36. It lets a judge pause a criminal case so the person charged can get mental health treatment.
The statute calls this “the postponement of prosecution.” If the person does well in treatment, the result can be significant. At the end of the diversion period, “the court shall dismiss the defendant’s criminal charges.”
A few other points from the statute:
- Diversion can last up to two years for a felony and up to one year for a misdemeanor.
- After the charges are dismissed, the arrest “shall be deemed never to have occurred,” with some exceptions, such as an application to become a peace officer.
- The treatment provider sends regular progress reports to the court, the defense, and the prosecutor.
Who Can Ask for Mental Health Diversion?
The statute has two parts: eligibility and suitability.
To be eligible, the person must have a diagnosed mental disorder, such as bipolar disorder, schizophrenia, or post-traumatic stress disorder. The defense must show a diagnosis or treatment within the last five years by a qualified mental health expert. Antisocial personality disorder and pedophilia do not qualify.
The disorder must also have been a significant factor in the charged offense. Here the law helps the defense. Once there is a diagnosis, the court “shall find” that the disorder was a significant factor unless there is “clear and convincing evidence” that it was not.
To be suitable, a qualified expert must believe the symptoms would respond to treatment. The person must agree to diversion, give up the right to a speedy trial, and agree to follow treatment. The court must also find that the person will not pose an unreasonable risk of danger to public safety if treated in the community.
Some charges rule out diversion completely. They include murder, voluntary manslaughter, rape, and offenses that require sex offender registration, with one narrow exception.
The Question Two Courts Just Answered
When someone asks for diversion, the defense usually offers a report from its own mental health expert. Some prosecutors have responded by asking judges to order the person to sit for an exam with a prosecution expert.
They relied on Penal Code section 1054.3, a discovery law. It lets a court order an exam by a “prosecution-retained mental health expert” when a defendant “places in issue his or her mental state at any phase of the criminal action” through expert testimony.
Trial courts reached different answers. In San Diego County, judges granted the prosecution’s requests in two separate felony cases. In Stanislaus County, a judge denied one.
Why the Courts Said No
In Sua v. Superior Court, filed July 16, 2026, the Court of Appeal in San Diego set aside the exam orders. The court held that section 1054.3 allows a compelled exam “only when a defendant notices an intent to put on a mental state defense at trial through expert testimony.”
The court gave several reasons:
- “Mental state” refers to the intent or knowledge needed to prove a crime. That question is decided at trial.
- A diversion hearing is not a trial. The statute says it “shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel.”
- The diversion law does not allow a “battle of experts” over the diagnosis itself.
On September 17, 2026, a second appellate court reached the same result in People v. Superior Court (Jackson). The Fifth District held that “trial courts do not have the authority” to order a person seeking diversion to submit to an exam by a prosecution-retained expert.
The Jackson court added a related point. Whether someone has a diagnosis, and whether it contributed to the offense, are different questions from whether the person had the criminal intent needed for a conviction.
What Prosecutors Can Still Do
These rulings do not leave the prosecution without options. Both courts said so directly.
- Prosecutors can still offer “clear and convincing” evidence that the disorder was not a factor in the offense.
- They can offer their own expert’s critique of the defense expert’s report.
- They can ask the judge to appoint an expert under Evidence Code section 730, which lets a court appoint experts “on its own motion or on motion of any party.”
So the defense report will still be tested. What changed is that the prosecution cannot use section 1054.3 to require a person seeking diversion to sit down with the prosecution’s own expert.
A Judge Can Still Set Conditions
Diversion is not a free pass. In a separate published case, Thompson v. Superior Court, filed July 30, 2026, the First District held that a trial court may impose “reasonable rehabilitative probationary conditions” on a person granted mental health diversion. In that case, the condition was a search clause.
Diversion can also end early. The statute lets the court hold a hearing on whether to restart the case if, for example, the person is charged with a new felony or is not doing well in treatment.
Timing Can Make or Break a Request
Diversion is a pretrial program. In People v. Braden (2023), the California Supreme Court held that the request “must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.”
That means waiting can cost you the option. If you or a family member may qualify, raise diversion with your lawyer early in the case.
What These Rulings Mean If You Are Facing Charges
These decisions protect people who ask for help through the process the Legislature created. A request for treatment does not, by itself, open the door to an exam by the other side’s expert.
Every case is different. Whether diversion fits depends on the charges, the diagnosis, the treatment plan, and the person’s history. A careful request backed by a solid expert report and a realistic treatment plan matters. Both rulings come from the Court of Appeal, and later appeals could affect how they apply.
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ATTORNEY ADVERTISING. This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and prior results do not guarantee a similar outcome. Responsible attorney: Jasmine Mines, Mines Law Firm, 468 N. Camden Drive, Suite 200, Beverly Hills, CA 90210.