In a pending San Francisco criminal case, a mental health diversion request usually develops in stages: obtain evidence of a qualifying diagnosis, calendar a Mental Health Diversion Referral, assemble a treatment plan with a provider able to report progress, then ask the appropriate collaborative court to hear a petition. The court’s September 2026 attorney workflow shows different routes for people in custody and out of custody. A referral or diagnosis does not grant diversion; the judge must apply Penal Code section 1001.36 to the charge, evidence, proposed treatment, and public-safety factors.
Start with a diagnosis report, then a treatment plan
For someone in custody, the San Francisco workflow has defense counsel order a section 1001.36 report from Jail Health Services. The report goes back to the originating department. If it identifies a qualifying diagnosis and a suitable collaborative court, counsel calendars a Mental Health Diversion Referral in the recommended department. For someone out of custody, counsel supplies diagnosis documentation from a qualified mental health expert and calendars the referral in the appropriate collaborative court. The court’s July 2026 local procedures, which its website labels CURRENT DRAFT, describe working with an existing or new treatment provider for an out-of-custody report. (San Francisco Superior Court mental health diversion page; September workflow)
The diagnosis report and treatment plan answer different questions. The report addresses whether a qualified expert has documented a qualifying disorder; the plan explains how treatment will address the symptoms connected to the charged conduct and who will provide it. The local workflow shows Jail Health Services or a court-related team developing some in-custody plans, while an out-of-custody person may work with a current or new provider. The plan needs a provider willing and able to send regular progress reports. Counsel should identify who will prepare each document, whether the person’s insurance or county of residence changes that route, and whether the provider can actually accept the person. (September workflow; court-posted draft procedures; Penal Code § 1001.36(f))
Prepare the petition for the correct court
The September workflow shows the petition package with the section 1001.36 report, treatment plan, police report, and criminal-history record. It routes different cases through Department 15 or another collaborative court, including Department 8 when indicated. Counsel must confirm the actual referral department and its current filing, service, courtesy-copy, and hearing instructions before filing. San Francisco’s current Local Rule 16 governs criminal-motion filing and notice by motion type and case posture; the court-posted July diversion procedures provide additional operational guidance but are expressly labeled a draft. (September workflow; court-posted draft procedures)
Until diversion is granted, the underlying criminal case and its release conditions still matter. The court-posted procedure keeps bail and other pretrial motions in the referring department until acceptance. Do not assume a referral cancels a hearing, stays every obligation, or transfers the whole case. (Court-posted draft procedures)
Check statutory eligibility before relying on a referral
Section 1001.36 applies to eligible misdemeanor and felony charges, but excludes murder or voluntary manslaughter, most offenses requiring sex-offender registration, rape and several specified sexual offenses, and offenses under Penal Code section 11418(b) or (c). The registration-based exclusion has an express exception for indecent exposure under section 314. The diagnosis must be supported by diagnosis or treatment within five years by a qualified mental health expert, and the statute also addresses whether the disorder was a significant factor in the charged conduct. (Penal Code § 1001.36(a), (b), (d))
Suitability is a separate decision. The court considers expert opinion that symptoms would respond to treatment, consent and speedy-trial waiver, agreement to comply with treatment, and whether community treatment would pose an unreasonable public-safety risk. The statute has specific consent and waiver exceptions for certain defendants found incompetent and diverted instead of commitment; those exceptions are not a general way around consent. A court may deny diversion after an informal threshold showing or later review the full request. No provider or court department can promise the result in advance. (Penal Code § 1001.36(c), (e))
Give counsel the charge sheet, hearing notices, available diagnosis and treatment records, insurance information, provider contact, and any proposed plan. The Law Offices of David S. Chesley can evaluate the statutory criteria and local filing route for a pending case; call (800) 755-5174. See the firm’s San Francisco criminal defense page for broader case context.