In California’s evolving criminal justice system, mental health diversion under Penal Code section 1001.36 offers a transformative opportunity for defendants with mental health disorders to seek treatment instead of incarceration. A recent appellate court decision, People v. Harlow (2025), has clarified critical aspects of this law, particularly regarding the timing of mental health diagnoses. This ruling strengthens protections for defendants, ensuring that a diagnosis made after a crime can still qualify them for diversion.
At Lessem, Newstat & Tooson, LLP, we are committed to helping clients leverage such legal developments to achieve fair and rehabilitative outcomes.
What is Mental Health Diversion?
Mental health diversion in California, governed by Penal Code section 1001.36, offers an alternative to traditional criminal prosecution for defendants with diagnosed mental health disorders. This program allows eligible individuals to participate in treatment programs instead of facing incarceration, provided they meet specific criteria. The goal is to address underlying mental health issues that may contribute to criminal behavior, promoting rehabilitation over punishment. To qualify, defendants must demonstrate both eligibility (a qualifying mental health diagnosis) and suitability (factors like the likelihood of benefiting from treatment). Recent legislative changes have made this pathway more accessible, reflecting California’s commitment to a more compassionate justice system.
Summary of People v. Harlow (2025)
In a significant ruling on August 5, 2025, the California Court of Appeal, Fourth Appellate District, Division One, addressed the application of mental health diversion in People v. Harlow (D084252). The case involved Jimmie H. Harlow, charged with assault with a deadly weapon after attacking a neighbor with a skateboard in April 2020. The incident stemmed from a prior falling out between Harlow and the victim, Daniel G. In September 2023, Harlow sought mental health diversion, supported by a diagnosis from June 2023 indicating major depressive disorder, posttraumatic stress disorder (PTSD), and generalized anxiety disorder.
The trial court denied Harlow’s motion, acknowledging his recent diagnosis but reasoning that a diagnosis made three years after the crime did not show the mental disorder was a significant factor in the offense. Harlow pleaded guilty but later renewed his motion and sought to withdraw his plea, both of which were denied. On appeal, the court reversed the decision, finding that the trial court misapplied Penal Code section 1001.36. The statute, amended in 2022, presumes that a qualifying diagnosis within five years of the diversion request indicates the mental disorder contributed to the crime, unless rebutted by clear and convincing evidence. The trial court’s focus on the diagnosis’s timing was erroneous, as the statute does not require the diagnosis to predate the offense. Since the prosecution failed to provide sufficient evidence to rebut the presumption, the court ruled Harlow eligible for diversion and remanded the case to assess his suitability.
Why the Timing of a Mental Health Diagnosis Matters
The Harlow ruling underscores the critical role of timing in mental health diversion eligibility under Penal Code section 1001.36. The statute, as amended in 2022, specifies that a defendant is eligible if they have a qualifying mental health diagnosis made within the last five years from the diversion request. This framework reflects a deliberate legislative choice to prioritize recent diagnoses, ensuring they are relevant to the treatment that diversion programs provide. The Court of Appeal in Harlow clarified that the statute does not require the diagnosis to predate the crime, rejecting the trial court’s imposition of a stricter three-year limit.
This clarification is significant for several reasons. First, it acknowledges the practical reality that many defendants may not receive a formal mental health diagnosis until after their arrest, often when they gain access to legal or medical resources. The statute’s inclusion of “arrest reports” as permissible evidence for a diagnosis explicitly allows post-crime evaluations, recognizing that mental health conditions may have been present but undiagnosed at the time of the offense. Second, the five-year window ensures that the diagnosis is recent enough to inform effective treatment plans, aligning with the diversion program’s rehabilitative goals. The Harlow court emphasized that courts cannot override this statutory framework by imposing their own timing preferences, reinforcing the legislature’s intent to apply diversion broadly.
This ruling protects defendants from arbitrary denials based on the timing of their diagnosis. In Harlow’s case, the trial court’s focus on the three-year gap between the crime and diagnosis ignored the statutory presumption that a qualifying diagnosis within five years suggests a causal link to the offense. The absence of clear and convincing evidence to rebut this presumption, such as specific proof that Harlow’s disorders did not contribute to his actions, meant the trial court’s denial was legally incorrect. This precedent ensures that defendants with recent diagnoses have a fair shot at diversion, provided they meet other eligibility and suitability criteria.
Your Rights Under Penal Code Section 1001.36
Penal Code section 1001.36, as clarified by cases like Harlow and Sarmiento v. Superior Court (2024), grants defendants significant rights when seeking mental health diversion. Understanding these rights is crucial for navigating the process effectively:
- Eligibility Based on Diagnosis: You are eligible for diversion if you have been diagnosed with a recognized mental health disorder within the last five years before filing your diversion request. Qualifying disorders include, but are not limited to, major depressive disorder, PTSD, and generalized anxiety disorder, as seen in Harlow’s case. The diagnosis must come from a qualified mental health professional, who may rely on examinations, medical records, arrest reports, or other relevant evidence.
- Presumption of Causality: Once you provide a qualifying diagnosis, the statute presumes that your mental disorder was a significant factor in the commission of the charged crime. This presumption shifts the burden to the prosecution, which must present clear and convincing evidence to prove that your disorder was not a motivating, causal, or contributing factor. This high evidentiary standard protects you from speculative denials, as demonstrated in Harlow, where the prosecution’s failure to provide evidence led to the reversal of the trial court’s decision.
- Suitability Determination: Even if eligible, you must also be deemed suitable for diversion. The court evaluates four factors: (1) whether your mental disorder can be treated effectively through a diversion program, (2) whether you agree to comply with treatment, (3) whether you pose an unreasonable risk of danger to public safety, and (4) whether diversion aligns with the interests of justice. While eligibility is now easier to establish post-2022 amendments, suitability remains a more challenging hurdle, requiring careful preparation and advocacy.
- Right to Judicial Review: If your diversion request is denied, you have the right to appeal, as Harlow did. The Harlow ruling highlights that courts must adhere strictly to the statute’s requirements, and misapplications, such as imposing non-statutory timing rules, can be overturned. This ensures that your eligibility is assessed fairly and in accordance with legislative intent.
- Opportunity for Treatment Over Punishment: If granted diversion, you have the right to participate in a treatment program tailored to your mental health needs. Successful completion can lead to the dismissal of your charges, avoiding a conviction and its long-term consequences. This aligns with the statute’s goal of prioritizing rehabilitation for defendants whose mental health issues contribute to their criminal behavior.
How Lessem, Newstat & Tooson, LLP Can Help
Navigating the complexities of mental health diversion under Penal Code section 1001.36 requires experienced legal representation. At Lessem, Newstat & Tooson, LLP, our skilled criminal defense attorneys are well-versed in California’s diversion programs and the latest legal precedents. We can help you secure a qualifying mental health diagnosis, present a compelling case for eligibility and suitability, and advocate for your rights at every stage of the process. Whether you’re facing charges and seeking diversion or appealing a denial, our team is dedicated to achieving the best possible outcome for your case.
Contact us today for a free consultation to discuss how we can help you pursue mental health diversion and work toward a resolution that prioritizes your rehabilitation and future. Call us at (888) 643-2943 or contact us online to schedule an appointment. Let us guide you through this critical opportunity for a second chance.